Babu Singh vs Moti Ram

J. S. Sekhon, J.

Through this petition under section 482 of the Code of Criminal Procedure,. 1973, hereinafter referred to as the Code Babu Singh, petitioner, seeks the quashment of Kalandra dated 2441990 instituted for proceedings under section 145 of the Code as well as the order of even date of Executive Magistrate appointing Tehsildar Gulha as Receiver of the land in dispute, inter alia, on the ground that the petitioner is in actual possession of the same and that the Civil Court in the suit had restrained the opposite side from" interfering in the peaceful possession of the petitioner over the land in dispute.

This petition is resisted by the State (Respondent No. 3) inter alia on the ground that the ownership of the land in dispute vests in Gram Panchayat at Seenh and previously it was taken on lease with the petitioner but the petitioner failed to pay the lease money to the Panchayat and vide order dated 8.4.1987 (Annexure R. 1) of the Assistant Collector 1st Grade, Gulha, the petitioner was ordered to be ejected and to pay a penalty of Rs. 2540/per hectare per year. It is maintained that the petitioner subsequently filed a suit against the Gram Panchayat and vide order dated 16101987, the Sub Judge vacated the exparte stay order, granted in favour of the petitioner. The petitioner then preferred on appeal which was disposed of by the learned Additional District Judge, Kurukshetra on the undertaking of Babu Singh petitioner that he will leave possession of the disputed land after harvesting Rabi 1989 crop and that he will be entitled to participate in the auction held, by the Panchayat for leasing out this land. On this undertaking, the Additional District Judge passed the order (Annexure R. 3) dated 1051988 allowing Babu Singh appellant to remove Malba of any construction raised on the said land in case be could not turn out to be the successful bidder in the auction for leasing out this land. The receipts of payment of lease money Annexures R. 4, R. 5 and R. 6 were also annexed in order to show that this land was leased out to. private respondents and they have paid the lease money. A copy of Khasra Girdawri of the revenue record (Annexure R. 7) was also filed showing that the land was under cultivation of private respondents in the year 198990. The private respondents have also filed reply to similar effect.

In the replication to the written statements, the petitioner reiterated his own stand while controverting that of the respondents.

I have heard the learned counsel for the parties besides perusing the record.

Mr. G. S. Dhillon, the learned counsel for the petitioner on the strength of the observations of the Supreme Court in Rajkumar Devindra Singh and another v. The State of Punjab and others, 1972 Punjab Law Journal 592, contends that even if the petitioner is in illegal possession of the landin dispute, then he can be ejected by having resort to the provisions of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, and not in proceedings under Section 145 of the Code of Criminal Procedure. The learned counsel for the respondents on the other hand maintain that proceedings under Section 145 of the Code are maintainable If a party has been disposed by the other side within two months from the date when the report by the Police Officer is submitted to the Court.

There is no dispute regarding the legal position that even a trespasser in settled possession of the property can be ejected in due course of law and not forcibly. The observations of the apex court Rajkumar Devindra Singh and another's case (supra), relied upon by the learned counsel for the petitioner can be safely referred to in this regard. In that case, it was held in para No. 8 of the judgment that a person shall be deemed to be in unauthorised occupation of public premises for purposes of section 3(a) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, where he has before or after the commencement of the Act, entered into possession thereof otherwise than under and in pursuance of any allotment, lease or grant. These observations are not attracted to the facts of the case in hand in view of the specific averment of the present respondents that they had cultivated the wheat crop on the disputed land but the petitioners had taken illegal possession of the land within two months of the institution of these proceedings. The proviso and sub section 4 of Section 145 of the Code of Criminal Procedure, 1973, reads as under :

"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, peruse 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 subsection (1), in possession of the subject of dispute :

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully 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 subsection (1), he way treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1)."

A bare glance through the said proviso leaves no doubt that the Magistrate is competent to restore the possession to a party 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. Consequently, it cannot be said that proceedings under Section 145 of the Code, of Criminal Procedure are not maintainable.

However, there is considerable force in the second contention of .the learned counsel for the petitioner that the Civil Court being already seized of the matter and having granted interim stay to Babu Ram plaintiff restraining the defendants, that is, the other party in the case in hand from interfering in the possession of the disputed land, the parallel proceedings under Section 145 are not maintainable. During the course of arguments, the learned counsel for the petitioner has produced a certified copy of the order of SubJudge 1st Class, Kaithal, dated 151990 in Civil suit No. 660 of 1989 instituted on 6101989 titled Babu Ram v. Moti Ram and others including Gram Panchayat of village Sinh, which shows that stay has been extended uptill 21.5.1990. The initial interim stay was granted by the Sub Judge vide order Annexure P3 dated 1641989. Thus on the date of instituting the proceedings under section 145 of the Code of Criminal Procedure, that is on 2441990 the stay order was already in force.

Under these circumstances, the proceedings JUDGMENT Section 145 of the Code of Criminal Procedure and order dated 2441990 of the Executive Magistrate are hereby quashed accepting this petition as the civil Court is already seized of the matter and the parties could get the effective relief from the Court.

JUDGMENT accordingly.