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Judgment
Hon''ble Shri Prashant Kumar Mishra, J.—Petitioner has called in question order dated 11/01/2009 (Annexure P-5) whereby the Sub Divisional Magistrate, Kanker has directed the Chief Executive Officer, Janpad Panchayat, Charama to take a decision and submit report before him. Brief facts concerning the present dispute are that petitioner''s application for grant of fishing rights was rejected by the Janpad Panchayat, Charama and his further appeal was dismissed by the Deputy Director, Panchayat and Collector, Kanker. Petitioner thereafter preferred W.P. No. 4855/2004 which was allowed by this court vide order dated 8/09/2005 with a direction to the respondents to consider the application of the petitioner afresh and take decision in accordance with law. Pursuant to the said decision petitioner''s application was considered and eventually the concerned Janpad Panchayat resolved to grant lease to the petitioner and thereafter the Chief Executive Officer, Janpad Panchayat by its order dated 23/02/2006 approved the resolution and a lease was executed in petitioner''s favour.
Undisputedly the period of lease has expired on 16/06/2010.
When the petitioner was enjoying and exercising the fishing rights a dispute arose between the petitioner and respondents No. 5 and 6 and thereafter proceedings u/s 145 of Cr.P.C. was initiated by the Sub Divisional Magistrate, Kanker and a preliminary order was passed on 12/04/2006 vide Annexure P-3. Though order of attachment is not available in the record of the writ petition but from the impugned order Annexure P-5 it would appear that an order of attachment was issued by the Sub Divisional Magistrate and the concerned Police was directed to take possession of the subject tank and attach the sale proceeds. It is also reflected from the impugned order that the officers of the fishery department was directed to help concerned Police in proper execution of the warrant of attachment and to carry on the fishing activity.
Learned counsel for the petitioner would submit that though the period of lease has expired but the sale proceeds obtained from selling of the fishes are in deposit with the concerned Police, therefore the cause of action still survives and the writ petition deserves to be allowed.
He would submit that the lease granted to the petitioner has not been set aside or cancelled either by the Janpad Panchayat or by any superior officer, therefore petitioner alone is entitled to receive the amount which is lying in deposit with the concerned Police.
On the other hand, Shri Prajapati, learned counsel for respondent No. 6 would submit that the matter has attained finality and nothing survives in this writ petition.
Shri Dubey, learned Government Advocate would submit that from the documents available in the writ petition it does not appear that any order has been passed regarding disbursal/disposal of the amount collected during the period when the order of attachment passed by SDM u/s 146(1) of Cr.P.C. was operative, however, any order passed by this court on the said subject shall be complied with.
Considering the arguments and on perusal of the papers available in the record, this court is of the considered opinion that once proceedings u/s 145 of Cr.P.C. has been undertaken by the concerned SDM and sale proceeds obtained from selling the fishes have been deposited with the concerned Police a final order concerning disbursal of the said amount to the person lawfully entitled for it is required to be passed. Jurisdiction u/s 145 of Cr.P.C. is available to an Executive Magistrate when a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof. Sub Section 2 of Section 145 provides that 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.
Thus, a dispute regarding fisheries is covered u/s 145 of Cr.P.C. and the Magistrate having once initiated the proceedings is under a legal obligation to conclude the same in accordance with law as per procedure prescribed u/s 145 of Cr.P.C. including an order under sub section 6 thereof for issuing an order declaring that any party to the dispute is entitled to possession of the property in dispute.
Inspite of the said provisions of law it appears that the Sub Divisional Magistrate by its order dated 27th June, 2007 abruptly dropped the proceedings on the premises that the High Court has passed some order as mentioned in the letter dated 28/06/2005 of Collector, Kanker.
However, it is to be seen that on any date prior to 28/06/2005 the dispute concerning the entitlement of lease was not finally determined by this court and the order passed on 8/09/2005 in W.P. No. 4855/2004 only directed for consideration of the application of the petitioner for grant of lease which was later on granted on 23/02/2006. It has not been brought to the notice of the court that any other order has been passed by this court or for that matter any other authority in respect of the lease granted to the petitioner or setting aside the proceedings u/s 145 of Cr.P.C.
In the above mentioned facts and situation of the case, this writ petition deserves to be and is accordingly disposed of with a direction to the Sub Divisional Magistrate, Kanker to conclude proceedings u/s 145 of Cr.P.C. in accordance with law and pass an order regarding entitlement of the amount which is lying in deposit with the concerned Police Station. The proceedings shall be completed by the concerned Magistrate within a period of four months from the date of presentation of certified copy of this order. With the above direction, the writ petition is disposed of.