Ab. Razak Shah and Others vs Mir Akbar Khan and Others

Ali Mohd. Magrey, J.â€"This petition under Section 561-A Cr.P.C. has been filed by the petitioners seeking quashing of the proceedings initiated

by the Sub-Divisional Magistrate, Uri, under Section 145 Cr.P.C. on the police report and the orders dated 20.11.2012 read with order dated

21.11.2012 passed by the Magistrate as well as the order dated 04.02.2014 passed by the learned Additional Sessions Judge, Baramulla, in the

criminal revision filed by the petitioners herein against the aforesaid orders of the Magistrate. The dispute relates to a shop and the land underneath

and appurtenant thereto measuring 13 Kanals and 18 Marlas comprised in Khasra no 536/110/1 situated at village Busgran, Uri. Admittedly, the

land in question is State land. Both the parties are claiming possession over the land especially the shop situated thereon. To buttress their claim,

respondent is relying on Khasra Girdawari; whereas petitioners claim that the revenue records have been manipulated and that the respondents

have been never in possession of the land.

The petitioners have filed this petition seeking quashing the proceedings initiated by the Sub-Divisional Magistrate, Uri, Executive Magistrate 1st

Class, on several grounds. It is firstly submitted that the learned Magistrate has not recorded any satisfaction regarding existence of a dispute as

contemplated under Section 145 Cr.P.C.; secondly, it is submitted that the learned Magistrate had no jurisdiction to initiate parallel proceedings,

when it had already passed an interim direction in the revenue proceedings initiated at the instance of the respondent under Section 133 of the

Land Revenue Act;; thirdly, it is submitted that there was no circumstance to invoke the emergency powers and attach the property; fourthly it is

submitted that the learned Magistrate passed the order in violation of the requirements of Section 145 Cr.P.C.; fifthly, it is submitted that the

learned Magistrate has no jurisdiction to attach the shop which is a business establishment. As to the order dated 04.02.2014 passed by the

learned Additional Sessions Judge in the revision petition filed against the orders of the learned Executive Magistrate, it is submitted that the learned

Sessions Court has fallen into an error of law while upholding the validity of the impugned order.

On the other hand, the respondent No. 1, claiming possession over the disputed property, especially the shop situated thereon, in his reply has

defended the impugned orders.

I have heard learned counsel and considered the matter.

Before adverting to order dated 20.11.2012 read with order dated 21.11.2012 passed by the Magistrate, it needs to be mentioned here that I

have minutely gone through the order passed by the learned Additional Sessions Judge, Baramulla. A perusal thereof reveals that neither of the

parties had raised the issue of pendency of revenue proceedings under Section 133 of the Land Revenue Act before the learned Sessions Judge.

The learned Sessions Judge in its order, impugned herein, has, therefore, adverted wholly and solely to the points raised before it by the parties

concerning the validity or otherwise of the proceedings initiated and the order of attachment passed under Section 145 Cr.P.C. by the Magistrate.

Therefore, I think it would be appropriate to first deal with the argument of the learned counsel relating to the revenue proceedings.

Section 133 of the Land Acquisition Act, Svt. 1996 (hereinafter, for short, the Act) basically, is a provision that provides the procedure to be

adopted by the competent revenue officers mentioned therein to prevent encroachment on village common land. Whereas sub-sections (1) and (2)

of Section 133 of the Act envisage that when land reserved for common purpose of the co-sharers has been encroached on by any co-sharer, he

shall be ejected therefrom in accordance with the procedure prescribed therein, proviso to sub-section (2) provides that where on any land

mentioned in clause (a) of sub-section (2), i.e., the land which has been reserved for grazing ground or any other public purpose, or of which the

cultivation has been prohibited by a Revenue Officer duly empowered in that behalf, any structure stands raised, the person encroaching upon the

land shall be ejected therefrom forthwith leaving an area of 10 marlas under and adjacent to the structure in respect of which the owner thereof

shall be given a notice in writing affording him an opportunity to : (1) dismantle the structure and to remove the material from the site; or (2) offer

suitable equivalent area in exchange from out of his proprietary land etc. Obviously thus an interest is created by the aforesaid provision in favour

of the encroacher, at least, to the extent of the land measuring 10 Marlas underneath and appurtenant to the structure.

In the instant case, admittedly, a structure in the shape of a shop exists on the disputed land. However, both the parties are claiming ownership

and possession of the said shop. In terms of sub-section (4) of Section 133 of the Act, whatever procedure is prescribed in different sub-sections

thereof is envisaged to be subject to any decree or order which may be subsequently passed by any court of competent jurisdiction. Sub-Section

(5) of Section 133 of the Act, for facility of reference, is quoted hereunder:

(5) The proceedings of the Revenue Officer under the foregoing sub-sections shall be subject to any decree or order which may be subsequently

passed by any Court of competent jurisdiction.

Once the decision(s)/order(s) of the competent revenue officers exercising powers under Section 133 of the Act are subject to the decree or order

which may be subsequently passed by any civil court of competent jurisdiction, the revenue proceedings under Section 133 of the Land Revenue

Act cannot be treated such civil proceeding as would bar initiation of proceedings under Section 145 Cr.P.C. especially so when the provision

provides for prevention of encroachment on common land and the procedure to be followed to eject the encroacher. Similarly, interim orders

passed in such proceeding would not be a bar to the initiation of proceedings under the provisions of Section 145 Cr.P.C.

Besides, the basic object of Section 145 of the Code of Criminal Procedure is to prevent breach of peace. It is not the case of the parties that

the interim direction of the Sub-Divisional Magistrate in the revenue proceedings under Section 133 of the Act has, in any way, diminished the

imminent danger of breach of peace on the spot; it is, rather, admitted that both dare claiming possession over the shop in question. Therefore, the

contentions that the Magistrate had no jurisdiction to initiate parallel proceedings, when it had already passed an interim direction in the revenue

proceedings, or that there was no circumstance to invoke the emergency powers and attach the property, are untenable.

As to the validity or otherwise of the order dated 20.11.2012 read with order dated 21.11.2012 passed by the Magistrate, I deem it

appropriate to quote hereunder the text of the order. It reads thus:

Subject: Initiation of proceedings under Sec. 145 Cr.P.C.

Ref: SHO Uri communication dated 15.11.2012 Mir Akbar Khan S/o. Ali Akbar Khan v. Abdul Razak Shah R/o Bhasgran, Uri.

Whereas, dispute has arisen between the two parties on the land measuring 13.8 Kanals under Khasra No. 536/110/1 in village Shasgran Uri

which can cause law & order problem/breach of peace and there is possibility of a serious apprehension of damage to life and property of both the

parties.

Whereas, SHO Uri after holding a preliminary enquiry in the dispute, communicated to this court vide dated 05-11-2012 (sic) that there is serious

threat to the life and property to both the parties.

Whereas both the parties were ordered to maintain the status quo till completion of proceeding in this court but the rising tension among the parties

has breached the peace on many occasions.

In view of the above circumstances, it is hereby ordered under section 145 Cr.P.C. that Tehsildar Uri along with SHO Uri will take the possession

of the disputed land to avoid any breach of the peace/damage to life and property of both the parties till further orders in the matter.

After passing the aforesaid order on 20.11.2012, the learned Sub-Divisional Magistrate on 21.11.2012 has passed the following order:

In continuation to this office order No. SDM/Uri/12/1975-78 dated 20/11/2012 last para of order be read as under:

It is ordered that SHO Uri will take the possession of disputed land and Tehsildar Uri shall deploy the magistrate with the police concerned for

assistance.

The petitioners herein filed a revision petition against the aforesaid order of the Magistrate which, as said above, has been dismissed by the

learned Additional Sessions Judge, holding the order dated 20.11.2012 passed by the Magistrate as valid in law.

The learned Sessions Judge, in its impugned order has observed, inter alia, as under:

But it will be observed that order dated 20.11.2012 has been passed by the learned SDM, Uri, without requiring the parties to the dispute to

attend his court and to file the written statement of their respective claims regarding actual possession of the disputed land and further to produce

all documentary and other evidence on which they rely. It will be observed that the order dated 20.11.2012 does not entirely conform to the

requirements of law as laid down by our own Hon'ble High Court in the cases of Haleema v. Mst. Zamrooda, 1997 SLJ 410: JKJ Soft

JKJ/11511 and Manga v. Dhanna, 1971 KLJ 199 : 2010 (7) JKJ 398 [HC].

Having so observed, the learned Sessions Judge has proceeded to hold that since the parties had been agitating their respective claims before

the Tehsildar, Uri, for long, therefore, they would not be prejudiced, and that the defects in the order are curable in terms of the provision of

Section 537 Cr.P.C. in order to come to the aforesaid conclusion, the learned Additional Sessions Judge, Baramulla, has derived support from the

judgment in Manga v. Dhanna (supra) and the judgment of the Court in Kamal Dai Vs. Ram Saran and Others, . The learned Sessions Judge has

also reproduced in its judgment what had been laid down in Kamal Dai v. Ram Saran (supra) in the following words:

In the case of Kamal Dai Vs. Ram Saran and Others, , the honourable High Court has enumerated three necessary ingredients of a preliminary

order which are (a) that a dispute likely to cause breach of peace exists in respect of the land, (ii) the magistrate must record satisfaction in the

order that the dispute is likely to cause beach of peace in the area and (iii) that the said satisfaction has to be arrived on the report of the police or

any agency so also on the basis of the record which is before the Magistrate that he should send notice to the other side to submit the objections.

(highlighting supplied)

As becomes axiomatic, though the learned Additional Sessions Judge has reproduced the portion of the aforesaid judgment in its impugned order,

but has conveniently ignored to note that the aforesaid judgment has clearly laid down that the Magistrate should send notice to the other side to

submit the objections. Obviously, the learned Additional Sessions Judge has not followed the judgment in its true spirit.

Learned counsel for the petitioners submitted that the Executive Magistrate has miserably failed to comply with the requirements of Section

145(1) Cr.P.C. and, therefore, the impugned orders are liable to be quashed. In support of his arguments, the learned counsel cited and relied

upon the following judgments:

Manga & ors v. Dhana., 2010 (7) JKJ 398 [HC], which is a Full Court decision of this Court passed on 31.03.1971;

Faqir Chand and Another Vs. Talib Hussain and Another, ;

Gopi Chand Vs. Mohd. Hanief, ,

Darshan Lal Vs. Sain Dass and Others, ;

Ali Mohammad Tantry v. State, 2002 SLJ 263 : JKJ Soft JKJ/10091.

On the other hand, learned counsel for the respondent, besides relying on the Full Court judgment in Manga & ors v. Dhana (supra), also cited the

following judgments:

Haji Habib Ullah Shah and Others Vs. S.H.O. and Others, , which is a judgment of this Court;

Hakim Din Vs. Chatroo and Others, ;

Gulam Farid and Others Vs. State of Rajasthan and Others, ;

Abdul Gaffar v. State of Goa, Crimes IV-1995(2) 34;

Mumma Malla Vs. Mohamad Padroo, ; and

Ghulam Rasool Bhat v. State, 1981 KLJ 129: JKJ Soft JKJ/1559.

In Manga & ors v. Dhana (supra), the Full Bench of this Court has enumerated the following necessary ingredients of an order passed under

Section 145(1) Cr.P.C.:

(i) a statement that the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace;

(ii) the grounds of being so satisfied;

(iii) the correct description of the property;

(iv) a direction requiring the persons involved in the dispute to attend his court within a time to be fixed and put in written statement of their claim in

respect of the issue of actual possession; and

(v) a further direction to produce all documentary and affidavit evidence on which they rely.

It may be observed here that in the aforesaid case, the proceedings held under Section 145 Cr.P.C. were terminated in favour of Dhanna declaring

him to be in possession of the property and the other party was prohibited from disturbing his possession till he was evicted by a competent court

in due course of law. A revision was preferred before the learned Sessions Judge, Jammu, who remarked that the preliminary order passed by the

trial Magistrate was not in accordance with law, for, the trial Magistrate had not satisfied himself as to the existence of a dispute likely to cause

breach of peace nor had he recorded the grounds of his being so satisfied. The Magistrate had also not issued a direction requiring the non-

applicants to put in the written statement of their claims in respect of the fact of actual possession and to produce all documentary and affidavit

evidence on which they relied in support of their claims.

The Reference made by the learned Sessions Judge, Jammu, in the aforesaid case to the High Court had originally come up before one of the

Single Benches (who latter was one of the Members of the Full Bench). Before the leaned Single Bench it was argued that the Division Bench of

the Court in its decision reported as AIR 1959 J&K 16 had taken a view contrary to the views expressed by the Hon'ble Judge (originally hearing

the Reference) in some cases about the contents and validity of a preliminary order under Section 145 Cr.P.C. The learned Single Judge,

therefore, thought it fit to refer the matter to a Full Bench of the Court for an authoritative pronouncement. The Full Bench, after enumerating the

essential ingredients of an order required to be passed under Section 145(1) Cr.P.C. as quoted hereinabove, held that the same were lacking in

the case and, therefore, set aside the entire proceedings taken by the trial Magistrate right from the time of drawing of the first order therein with

direction to the Magistrate to pass a proper preliminary order and then start the proceedings afresh after going through the provisions of Section

145 Cr.P.C.

The ancillary legal question that the Full Bench considered was whether omission or irregularity in a matter of procedure unaccompanied by

any suggestion of probable injustice having been occasioned thereby is sufficient to invalidate the proceedings? It may be observed here that during

the course of arguments, another Full Bench decision of the Court reported as Ahsan Sofi and Others Vs. Sona Mir, was brought to the notice of

the Court wherein it had been held that where no order had been drawn up in terms of Sub-Section (1) of Section 145 Cr.P.C. Section 537 of the

Code would not be applicable and the invalidity was incurable, and that, failure to draw up a preliminary order in itself would cause prejudice to

the other side. Adverting to the aforesaid question, while noting the various decisions of this Court and other Courts of the country on the issue, the

Full Bench held as under:

...The test has been held to be whether the parties have been prejudiced by reason of such irregularity or omission; if inspite of a failure to

conform to the provisions substantial justice has been done, the defect is cured under Section 537 Code of Criminal Procedure and the final order

will not be interfered with in revision. Reference may be made to AIR 1927 P. C., 44, AIR 1949 Patna 146, AIR 1957 Nag. 27, AIR 1955

Allahabad 51, AIR 1955 Allahabad 478 and AIR 1952 Assam 185 etc. etc.

We also might incidentally remark that if the omission in the preliminary order does not cause prejudice or it is not suggested that miscarriage of

justice has taken place because of omission, if the parties knowing the nature and the subject matter of the dispute clearly fought out the case in the

trial court, the defects in the preliminary order will not vitiate the entire proceedings...

It may be reiterated here that relying upon the ratio laid down in the aforesaid Full Bench decision in Manga & ors v. Dhana (supra), the

learned Additional Sessions Judge, in the instant case, has held the impugned orders passed by the trial Magistrate to be curable under Section

537 Cr.P.C.

The learned Additional Sessions Judge has misconstrued the law laid down in Manga & ors v. Dhana (supra) and has not applied the same in

the correct perspective in which it was laid down and the facts attendant to the instant case. This is so because the aforesaid ratio has been laid in

context of a factual scenario wherein the aggrieved party would participate in the 145 Cr.P.C. proceedings without any demure to the invalidity of

the preliminary order and/or without raising any claim of prejudice having been caused on that count till the determination of the proceedings. In the

instant case, the non-applicant has not participated in the proceedings initiated under Section 145 Cr.P.C.; rather they have immediately challenged

the initial orders passed by the trial Magistrate in the revision petition before the learned Additional Sessions Judge.

It is also not correct to say that the petitioners herein had participated in the revenue proceedings initiated at the instance of respondent No. 1

herein before the Sub-Divisional Magistrate under Section 133 of the Land Revenue Act. It is worth mentioning here that revenue proceedings

were initiated on 22.10.2012 and the Police concerned made its report to the trial Magistrate on 05.11.2012 pursuant to which proceedings under

Section 145 Cr.P.C. were initiated by the Magistrate on 20.11.2012. In the police report, the concerned police has clearly mentioned that the

interim direction was brought to the notice of the parties and they were ordered to respect and obey the same, but that was not to be. There is also

nothing on record to show that before filing the revision petition before the Additional Sessions Judge, the petitioners had participated either in the

revenue proceedings or in the proceedings under Section 145 Cr.P.C. proceedings before the Magistrate. That being so, it cannot, by any

standards, be said that the petitioners had clearly fought out the case in the trial court and that they knew the nature and the subject matter of the

dispute.

Going through the impugned order dated 20.11.2012 read with order dated 21.11.2012 passed by the trial Magistrate, there can be no

difference of opinion that the order is lacking the essential ingredients as laid down by the Full Court in Manga & ors v. Dhana (supra), in that the

trial Magistrate has not given the correct description of the property, inasmuch as, as per the Police report dated 05.11.2012, the imminent breach

of peace on the spot concerns the shop constructed on the land, of which the trial Magistrate has made no mention in its impugned order; secondly

the impugned order of the trial Magistrate does not contain a direction requiring the persons involved in the dispute to attend his court and put in

written statement of their claim in respect of the issue of actual possession; thirdly, it also does not contain a direction to the non-applicants to

produce documentary and affidavit evidence on which they would wish to rely. The impugned orders passed by the trial Magistrate, therefore, can

not be said to be in conformity with the mandate of Section 145 Cr.P.C. The petitioners having filed the revision petition before the learned

Additional Sessions Judge at the earliest stage, without participating in the revenue proceedings or the instant Section 145 proceedings, it cannot

also be said that the impugned orders would not cause any prejudice to them.

It may be reiterated that, as held in Manga & ors v. Dhana (supra), failure to set out the grounds in the preliminary order, failure to specify the

property in dispute in the order; failure to serve or publish notice as required by sub-section (3) of Section 145 of the Code are violations of

mandatory provisions of law and renders all subsequent proceedings void and without jurisdiction.

Keeping in view the factual scenario of the present case and applying the law laid down by the Full Bench in Manga & ors v. Dhana (supra) in

its correct perspective, I think, it unnecessary to discuss the other judgments mentioned above cited and relied upon by the learned counsel for the

petitioners.

Coming to judgments cited and relied upon by the learned counsel for the respondent, I have already discussed the Full Bench decision of this

Court in Manga v. Dhana (supra). This being a Full Bench judgment of our own High Court, the law and the ratio laid down therein would prevail

over all judgments of the other Benches of this and other High Courts of the country.

Apart from the above, the judgments cited do not render any help to the respondent. For instance, in Haji Habib Ullah Shah and Others Vs.

S.H.O. and Others, , though it has been held that the preliminary order is in conformity with Sub-rule (i) (sic) of Section 145 Cr.P.C. but the

contents of the preliminary order are not quoted therein. It appears that the point raised therein was that the Magistrate had not recorded his

satisfaction. Nothing more is discernable from the judgment as to the contents of the preliminary order.

In Hakim Din Vs. Chatroo and Others, , the Court has held that object of Section 145 Cr.P.C. is to prevent breach of peace. This judgment,

strictly speaking, goes against the respondent, inasmuch as it is the admitted position that there is a dispute between the parties with regard to the

shop in question.

In Gulam Farid and Others Vs. State of Rajasthan and Others, , it has been held that mere pendency of a Civil Suit does not deprive the

Executive Magistrate of his jurisdiction under Section 145 Cr.P.C.

In Abdul Gaffar v. State of Goa, Crimes IV-1995(2) 34, the point at issue was whether on account of non-mention of grounds separately

which satisfied the Magistrate, would vitiate the order? The point raised was answered in negative. The judgment is not applicable herein.

The judgment in Mumma Malla Vs. Mohamad Padroo, ; and Ghulam Rasool Bhat v. State, 1981 KLJ 129 : JKJ Soft JKJ/1559, cited by the

learned counsel for the respondent are not relevant to the point at issue.

It was contended by the learned counsel for the petitioners that the trial Magistrate had acted without jurisdiction inasmuch as the shop-a

business establishment had been attached. In this behalf, it would be suffice to say that there is nothing on record to show that it has been used as a

business establishment. In fact, the record suggests that the same is being used for storage of agricultural implements of personal use.

In light of the above discussion, it is held that the revenue proceedings under Section 133 of the Land Revenue Act would not be a bar to the

initiation of proceedings under Section 145 Cr.P.C. it is further held that the order dated 20.11.2012 read with order dated 21.11.2012 passed by

the trial Magistrate does not conform to the mandate of Section 145 Cr.P.C. and the defects therein, in the peculiar facts and circumstances of this

case, are not curable under Section 537 of the Code. Therefore, the same deserve to be set aside, leaving it open to the trial Magistrate to pass a

fresh order and proceed in the matter strictly in accordance with the mandate of law.

This petition is, accordingly, allowed. The impugned order dated 20.11.2012 read with order dated 21.11.2012 passed by the Sub-Divisional

Magistrate, Uri, is set aside together with the order dated 04.02.2014 passed by the learned Additional Sessions Judge, Baramulla, to the extent

indicated hereinabove, with direction to the trial Magistrate to pass a fresh order and to proceed in the matter strictly in accordance with the

mandate of Section 145 Cr.P.C. No order as to costs.