- (1.) WITH the consent of the learned counsel appearing for the parties the present petition is being heard and disposed of finally at this stage. Brief facts of the present case, inter alia, are that the respondent no. 4 had moved an application before the Sub-divisional Officer/Sub- divisional Magistrate, Deoghar, for handing over the peaceful vacant possession of the premises in question to the respondent no.4 after breaking the lock, which was put by the petitioner in the premises in question. On the application of the respondent no. 4, the learned Sub-Divisional Officer/Sub- Divisional Magistrate, Deoghar, was pleased to direct the police authority to break the lock and shift the articles found therein to the other place and to handover the vacant possession of the premises in question to the respondent no.4. According to the petitioner he was in possession as a tenant in the premises in question and during his absence, the learned Sub-Divisional Officer/Sub-Divisional Magistrate, Deoghar, has passed the impugned order while he had absolutely no jurisdiction to direct the police authority to break the lock and to handover the vacant possession of the premises in question to the respondent no.4.
(2.) WHILE , on the other hand, case taken by the respondent no. 4 in the counter affidavit is that prior to 2006, the petitioner had approached the husband of the respondent no.4 to permit him to solemnize the marriage of his daughter from the premises in question and on his request, husband of respondent no. 4 had allowed the petitioner to occupy the premises in question temporarily. However, even after marriage of the daughter of the petitioner he failed to handover the vacant possession back to the husband of the respondent no.4. Meanwhile, the husband of the respondent no. 4 expired in the year 2006 and even after his death, despite repeated requests made by the respondent no. 4, petitioner failed to handover peaceful vacant possession of the premises in question to the respondent no.4; during the period petitioner got constructed his new house in the other locality and had virtually shifted therein in the year 2008, but kept the premises in question under his lock and key, therefore, respondent no. 4 had moved an application before the Sub-Divisional Officer/ Sub-Divisional Magistrate, Deoghar, to handover the vacant possession of the premises in question after breaking the lock put thereon. The question as to whether the petitioner was occupying the premises in question as a tenant or as a licensee, as alleged by the parties, need not be decided in the present writ petition. Fact remains that the premises in question was under the lock and key of the petitioner and the petitioner did not enter in the premises in question as a trespasser and his entry was lawful; that too with the permission of the then owner i.e. husband of the respondent no. 4. In humble opinion of this court the Sub-Divisional Officer/ Sub- Divisional Magistrate or any Executive Magistrate has absolutely no jurisdiction to pass an order of eviction or to pass an order to the effect that the premises in question may be handed over to the owner after breaking the lock put by the tenant or the licensee, as the case may be. Respondent no. 4, if so advised, could have approached the competent Civil Court against the petitioner whose initial entry was neither unlawful or unauthorized, but it was lawful with the consent of the husband of respondent no.4, wherein question of status of the petitioner as to whether he was lessee or licensee could have been adjudicated upon. The Sub-Divisional Officer/Sub-Divisional Magistrate, Deoghar, has exercised the jurisdiction not vested in him, in law, therefore, order dated 15.06.2011 does not sustain in the eyes of law.
(3.) CONSEQUENTLY , order impugned dated 15.06.2011 is hereby quashed. Let possession be restored to the petitioner forthwith. It is clarified that any observation made herein before was only for the purpose of deciding the present petition and this Court has not expressed any opinion on the question as to whether, the petitioner shall be deemed to be a tenant or licensee as claimed by the respective parties. Present writ petition stands disposed of accordingly.;