Abdul Aziz vs IVth Additional Sessions Judge and Others

Devi Prasad Singh, J.—Heard the learned Counsel for the Petitioner as well as learned standing counsel. Cause list revised none present for the opposite parties.

The brief fact of this case is that the opposite party No. 4 had moved application u/s 145 of the Code of Criminal Procedure against one Naim and Raza (opposite parties No. 5 and 6) in the Court of City Magistrate, Lucknow. After hearing the parties the City Magistrate could not decide which party is in possession of land in question, hence he had referred the matter to Munsif South, Lucknow, to decide the factum of possession. The Munsif South, Lucknow, had given a finding by order dated 2nd August, 1981, holding that Ram Chandra the first party was in possession. Accordingly, the City Magistrate, Lucknow, relying upon the decision of Munsif South by order dated 25th October, 1973 arrived to the conclusion that the first party is in possession and thereafter by an order dated 10th October, 1973 declared that the first party Ram Chandra was in possession within two months from the date passing of preliminary order and plot in question was released in his favour.

The S.O. police station Hasanganj, Lucknow, had submitted a report on 21.7.1974 to the City Magistrate that for the land in dispute one Munna and 48 other persons have raised construction and they are residing in their respective houses and therefore, it is not possible to deliver the possession of the same to the first party, i.e., Ram Chandra. After receipt of police report City Magistrate issued notice to all the persons who are total 48 in number. Out of 48, 45 persons including the Petitioner had filed objection claiming their right on the plot in question. The proceeding was held ex parte and even before Munsif South, Lucknow, the objectors were not party. Accordingly the factum of finding relating to possession passed by the Munsif South was violative of principle of natural justice. The submission before the City Magistrate was that constructions were raised long ago before the proceeding u/s 145 of Cr. P.C.

The learned City Magistrate by the impugned order dated 20th December, 1980 rejected the objection of the Petitioner vis-a-vis other 45 persons and directed to remove whatever construction exist on the land in question. The trial court had given a finding that the constructions were not raised earlier but they were raised during the pendency of the case u/s 145, Cr. P.C. A revision was preferred by 48 persons against the impugned order of City Magistrate including the Petitioner. The memo of the revision has been filed as Annexure-10 to the writ petition. The main thrust of argument before the revisional court was that the Petitioner as well as the revisionist were not party before the Munsif South, as well as the City Magistrate at the stage when materials were collected, parties were heard and findings were given that the first party Ram Chandra was in possession of the land in question. They have come to know relating to the impugned order passed by the City Magistrate to restore the possession to first party Ram Chandra only when the police officials of the police station concerned had approached them to vacate the construction and remove their constructions.

In para 6 of the revision, it has been submitted by the revisionist that majority of the construction of the houses were done almost 40 years before and some of them are 100 years old. The impugned order passed by the revisional court is violative of principle of natural justice as the revisionist including the Petitioner were not having opportunity to defend themselves.

Before revisional court the Petitioner including the other revisionists who are opposite party Nos. 5 to 53 in the present writ petition had moved application with prayer that they may be permitted to adduce evidence relating to the existence of their houses in the premises in question, existing much before initiation of processing u/s 145, Cr. P.C. But the learned revisional court had not permitted the Petitioners as well as other revisionist to lead evidence and affirmed the finding of City Magistrate.

u/s 145 of the Cr. P.C. possession within a period of two months from the date of initiation of proceeding is to be seen. Neither the City Magistrate nor the revisional court were having right to decide the title of the land in question. It is not disputed that when the matter was referred to Munsif South to decide the factum of possession, neither the Petitioner nor other revisionist impleaded as opposite party Nos. 5 to 53 in the writ petition were party to the proceeding. In case the houses were constructed in the land in question even during the 10 years as held by the court below, it was incumbent on the Munsif South as well as City Magistrate to provide opportunity to the Petitioner as well as opposite party Nos. 5 to 53 to lead evidence to show that their houses are old one and dispute cannot be adjudicated upon in the summary proceeding u/s 145 of Cr. P.C.

The jurisdiction of City Magistrate was not confined to decide the controversy on the basis of the material placed by the parties of the case. As and when the facts were brought on record that the others are also involved in dispute and other persons are also in possession of the land in question then it was not incumbent upon the opposite parties to serve notice to all these persons. Moreover once the notices were issued to the Petitioner as well as the opposite party Nos. 5 to 53 to file an objection after receipt of police report and in compliance thereof objections were filed then it was incumbent upon the City Magistrate to permit them to take over the land in question. After receipt of objection filed by the Petitioner and the opposite party Nos. 5 to 53 it was not open to opposite party No. 1 to maintain his earlier order passed in favour of opposite party Ram Chandra on the basis of judgment of Munsif South, which was passed after hearing of only two parties. Under the facts and circumstances of the case it cannot be ruled out that there may be collusive proceedings (as argued by Petitioner) and the Court should have taken necessary precaution while directing the police station to enforce its order by getting the premises vacated and to remove the structures.

The Sub-section (3) of Section 145 provides that the copy of the preliminary order shall be served upon such person or persons as the Magistrate may direct. Even the literal meaning of Sub-section (3) of Section 145, Cr. P.C. shows that all persons who may claim possession of the land in dispute should be served with the notice by the Magistrate concerned, in case it came to its knowledge by any source or means whatsoever that they are in possession of disputed property.

Sub-section (4) of Section 145, Cr. P.C. further provides that the Magistrate shall, without reference to the merits of the claim of any of the parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary. These statutory provisions contained in Sub-section (4) are mandatory and once the Petitioner and private opposite party Nos. 5 to 53 has filed objection, it was incumbent upon the Magistrate either to permit the Petitioner and opposite party Nos. 5 to 53 to lead evidence relating to their possession and right over the land in question or may again refer the matter to civil court concerned to decide the dispute relating to possession after considering the case of subsequent objectors also.

Section 145 of the Code of Criminal Procedure is reproduced as under:

145.

(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongly dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under Sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under Sub-section (1).

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

(6)

(a) If the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction ; and when he proceeds under the proviso to Sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this Sub-section shall be served and published in the manner laid down in Sub-section (3).

(7) When any party to any such proceedings dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed u/s 107.

A plain reading of Section 145 of Cr. P.C. further reflects that the ample power has been given to the Magistrate to summon any person as witness and produce document under Sub-section (9) of Section 145 of Cr. P.C. at any stage of proceedings. Sub-section (5) of Section 145, Cr. P.C. further provides that in the proceeding at any stage any party if required may attend or any other present interest may move application showing that no such dispute exist. Being satisfied Magistrate may stay or cancel the proceeding. Meaning thereby in view of the statutory provision contained under Sub-section (5) of Section 145 of Cr. P.C., the objection of the Petitioner as well as opposite party Nos. 5 to 53 should have been taken seriously with full weight and opportunity of hearing which includes adducing of evidence should have been provided. City Magistrate as well as revisional court has failed to notice statutory provisions contained in Section 145 of Cr. P.C.

The City Magistrate was empowered to cancel the entire proceedings in case the Petitioner or opposite party Nos. 5 to 53 would have satisfied that no dispute exist and the proceeding was collusive between the first and 2nd party or the pucca structure and houses are standing over land in question since 40 years or 100 years as pleaded in the memo of revision and argued before the revisional court.

In view of the above, I find that the impugned judgments and orders are not sustainable as the Petitioner was not provided opportunity to lead evidence in support of their objection. The impugned orders have been passed in violation of statutory provisions contained in Section 145 of Cr. P.C. as well as principle of natural justice.

Hence, the writ petition deserves to be allowed. A writ of certiorari issued quashing the impugned orders dated 30.11.1981, passed by the Additional Sessions Judge, Lucknow (Annexure-11) and order dated 20.12.1980 passed by the City Magistrate, Lucknow (Annexure-9) with all consequential benefits.