Ravindra Singh, J. - (1.) Heard Sri P.C. Srivastava and Sri S.K. Mishra, learned Counsel for the petitioner and learned A.G.A. for respondent Nos. 1, 2, and 3 and Sri Jai Shankar Audichya and Sri Sanjay Misra, Advocate for respondent Nos. 4 and 5. Counter and rejoinder affidavit has been filed. Both the parties were heard on 22.11.2004 and the order was reserved on the same day. Before delivery of judgment Criminal Misc. Amendment Application No. 211709 of 2004 has been filed by the petitioner Haji Gulfam Ahmad on 24.11.2004 in the Court, copy was also already served upon the learned Counsel for the respondent Nos. 4 and 5 as well as learned A.G.A. on 22.11.2004. This amendment application has been filed with the following prayer:- "A (1) issue writ, order or direction in the nature of certiorari quashing the order dated 6.8.2004, passed by the respondent No. 3 (Annexure-I to this affidavit). A (2) issue writ, order or direction in the nature of mandamus directing the respondent No. 3 not to release N.M. Industries, Kalasia Road, Saharanpur in favour of respondent Nos. 4 and 5 till the title is decided by the Civil Court. And/or be pleased to pass any other or further order the Hon'ble Court deems just and proper on the facts and circumstances of the case." During the course of argument it was contended by learned Counsel for the petitioner that he has filed criminal misc. application and its copy has been served upon the respondent Nos. 4 and 5, but the same is not on the record, so the office copy was supplied by the petitioner, to the Court. The learned Counsel for the respondent Nos. 4 and 5 has opposed this application by contending that in the writ petition there is no averment in respect of order dated 6.8.2004 passed by respondent No. 3. The writ petition was filed by concealing the order dated 6.8.2004. When the copy of the counter affidavit was served upon the petitioner in which the copy of the order dated 6.8.2004 was annexed by the Counsel for the respondent Nos. 4 and 5 and it was clearly stated in counter-affidavit that impugned order dated.5.8.2004 was never passed by the respondent No. 3, but in the writ petition the order dated 5.8.2004 is challenged without filling copy. In fact it was not in existence. The controversy is that the order dated 5.8.2004 was ever passed or not it will be decided subsequently, but there will be no harm to the respondents, if the amendment application is allowed. Consequently, Criminal Misc. Amendment Application No. 211709 of 2004 is allowed.
(2.) This writ petition has been filed by the petitioner with the prayer to issue writ, order or direction in the nature of mandamus directing respondent No. 3 not to released N.M. Steel Industries, Kalsia Road, Saharanpur in favour of respondent Nos. 4 and 5, in pursuance of order dated 5.8.2004 (not supplied to the petitioners). It is contended by the learned Counsel, for the petitioner that the petitioner and respondent Nos. 4 and 5 entered into partnership agreement deed with the purpose of establishing a Industry in the name and style of N.M. Steel Industries (hereinafter referred to as 'Industry') on 20.12.2002. According to partnership agreement the administrative power for running the Industry was vested with the petitioner. The respondent Nos. 4 and 5 were entitled to work under the supervision and administration of petitioner and were entitled for salary of Rs. 2,000/- each as per month. The said Industry was registered under the Dookan Evam Vanijya Adhisthan and on 7.8.2003 a registration certificate was issued by the Shram Parivartan Adhikari, Nirikshak, Uttar Pradesh Dookan Evam Vanijya Adhishthan, Saharanpur. Thereafter, the father of the respondent Nos. 4 and 5 with the help of anti-social persons forcibly try to dispossess and remove the petitioner's hold from the Industry. Thereafter, the petitioner submitted an application before the Sub-Divisional Magistrate, Saharanpur, who called for report from the S.H.O. Police Station, Mandi, but without considering the same and due to political pressure and influence of respondent Nos. 4 and 5 learned City Magistrate, Saharanpur passed an order dated 1.3.2004 by dropping the proceedings under section 145, Cr.P.C. Aggrieved by this impugned order dated 1.3.2004 the petitioner filed Criminal Revision No. 1401 of 2004 before this Court in which this Court has passed the order dated 5.4.2004 directing the respondent Nos. 4 and 5 not to dispose the machinery/industry in question and shall maintain status quo as on that day. The certified copy of the above mentioned order dated 5.4.2004 alongwith an application was submitted before the S.S.P. Saharanpur on 12.4.2004. Thereafter, 15.4.2004 when the work of the industry was going on, the respondent Nos. 4 and 5 with anti-social persons came to the premises of the industry and started removing and selling the machineries and raw material of the industry. Thus, the petitioner filed an application before this Court in Criminal Revision No. 1401 of 2004 and the Court after hearing counsels for the parties directed the City Magistrate, Saharanpur to appoint a Receiver regarding the property of the industry in dispute. In compliance of that order the receiver was appointed who took the possession the industry in dispute from the respondent Nos. 4 and 5 as well as from the petitioner. Thereafter, the above mentioned Criminal Revision No. 1401 of 2004 was finally disposed of on 22.7.2004. It was partly allowed by passing the following operative portion of the order : "Accordingly, the revision is partly allowed. The order dated 1.3.2004 directing the Station House Officer, Kotwali Mandi to direct the parties to maintain status quo till their rights are decided by the competent Court is hereby set aside and the said impugned order dated 1.3.2004 refusing to initiate proceeding under section 145, Cr.P.C. is confirmed. The interim orders dated 5.4.2004 directing the respondent Nos. 4 and 5 not to dispose of the Machinery/ Industry in question and the order dated 6.5.2004 directing the City Magistrate to appoint receiver regarding the property of the industry in dispute stand vacated."
(3.) It is further contended that after passing the above-mentioned order dated 22.7.2004 the respondent Nos. 4 and 5 filed an application dated 3.8.2004 before the City Magistrate, Saharanpur for taking possession of the Industry in question. The petitioner filed objection against the application dated 3.8.2004 before the City Magistrate on the same day. The learned City Magistrate passed the order dated 5.8.2004 to release the industry in dispute in favour of respondent Nos. 4 and 5. It is contended that this order was passed without applying the judicial mind. It was illegal and arbitrary order. It is further contended that the petitioner has made request to the City Magistrate, Saharanpur for supplying the copy of the order dated 5.8.2004, but learned City Magistrate, Saharanpur refused to give the copy of that order. Due to this reason the petitioner was unable to file the copy of the alleged impugned order dated 5.8.2004 with the present writ petition. It is further contended that the petitioner and the respondent Nos. 4 andp5 were partners of the industry in dispute and this Court recorded the finding that the dispute was regarding partnership. The proceedings under section 145, Cr.IS.C. are illegal, arbitrary and without authority of law which are liable to be set aside.;