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Judgment
Palok Basu, J.—Bhupal Singh, Gulab Singh, Bhushan Singh, Shree Pal Singh, Hanuman Singh and Phool Singh, all sons of Makhan Singh have filed this writ petition under Article 226 of the Constitution of India praying that the order passed by the Magistrate on 13.1.1989 (Annexure 9) and order passed by the Addl. Sessions Judge in Revision on 10.5.1990 (Annexure 11) be quashed and it has been further prayed that the proceedings after the application moved by the opposite parties Nos. 3 and 4 on 18.2.1987 be quashed.
When this writ petition was filed, the following interim order was passed:
Issue Notice.
Until further orders, the operation of the Magistrate''s order dated 13.1.89 and 10.5.90 will not be given effect to and the status quo at the site will be maintained.
It appears that opposite parties Nos. 3 and 4 claimed possession of the same plots concerning which the Petitioners lay their claims.
After the aforesaid interim order of this Court, it appears that the Petitioners moved an application before the Magistrate for some orders in pursuance of the said interim order whereupon the Magistrate passed the following order on 28.5.1990 (Translation by Court):
The Station Officer is directed to receive copy of the Hon''ble High Court''s order for compliance. Status quo shall be maintained at the site.
The opposite parties Nos. 3 and 4 consequently filed a petition u/s 482, Code of Criminal Procedure in this Court against the aforesaid order of the Magistrate dated 28.5.1990 which has been numbered as Criminal Misc. Application No. 8615 of 1990. The prayer contained in this petition u/s 482, Code of Criminal Procedure is that:
The proceedings started on the basis of application dated 25.5.1990, Le. (Annexure 5) alongwith the impugned order dated 28.5.1990 (Annexure 7) be quashed. It has further been prayed that further proceedings for re-delivery of possession to the Supurdar on the basis of the impugned order dated 28.5.1990 be stayed during the pendency of this application before this Hon''ble Court.
It may be mentioned that this 482 petition was directed to be listed before this Court. Consequently, when the petition u/s 482, Code of Criminal Procedure came up before this Court, it was directed to be connected with the aforesaid writ petition and this is how both these matters have come up today after several adjournments obtained by the respective counsel. In the meantime, learned Counsel for the parties have exchanged counter and rejoinder affidavits as well as have filed supplementary affidavits in either of the proceedings mentioned above in this Court and today the matter was heard at length. It may be mentioned that in this petition u/s 482, Code of Criminal Procedure, no interim order was passed.
Coming to the facts of the case, the whole petition concerns a dispute about possession regarding plot No. 581 having 5.72 acres and plot No. 1793 having 11.45 acres, situated in village Rampur, Police Station Jaspura, district Banda.
The Petitioners'' case is that these two plots were recorded in the name of Gajju Singh, their uncle who executed a will on 6.7.1986 bequeathing all his movable and immovable property in favour of the Petitioners including the plots in dispute. They applied for mutation which was allowed by the Tehsildar on 29.5.1987. It is, however, not in dispute that on some proceedings initiated by the opposite parties Nos. 3 and 4, the Naib Tehsildar had passed some contrary order on 26.8.1986 and that order was set aside by the Tehsildar on 20.5.1987 while ordering mutation in favour of the Petitioners.
Opposite party No. 3 is Smt. Sukhrani and opposite party No. 4 is Smt. Jhanki. They claimed to be daughters of Gajju Singh married in Kanpur Dehat and living there with their husbands Sheo Karan Singh and Sheo Baran Singh respectively in two different villages but both falling under Police Station Ghatampur district Kanpur Dehat. They filed an application on 18.2.1987 praying that "Crops of plot Nos. 581 and 1793 be attached u/s 145(8), Code of Criminal Procedure" After obtaining a police report on 28.2.1987, a preliminary order was passed concerning these two plots on 3.3.1987. The Petitioners, however, filed their objection to the initiation of the proceedings u/s 145 Code of Criminal Procedure. Some affidavits were filed indicating that there was no apprehension of breach of peace. The Magistrate passed a detailed order on 30.11.1987 whereby he rejected the proceedings u/s 145 Code of Criminal Procedure and also rejected the prayer for attachment of the crops as was made by Smt. Sukhrani and Smt. Jhanki.
This order of the Magistrate dated 30.11.1987 was challenged in Revision No. 167 of 1987 by the said opposite parties Nos. 3 and 4 which was allowed by I Ind Addl. Sessions Judge, Banda who passed the order dated 15.2.1988 remanding the matter to the Magistrate''s court for decision according to law. On the matter reaching the Magistrate''s court on remand, Smt. Sukhrani opposite party No. 3''s son Sheo Saran Singh, moved an application before the Supdt. of Police, Banda alleging apprehension through the Petitioners and he also prayed that a Supurdar be appointed. The S.P. directed the police to enquire and report which was submitted on 10.2.1988. This report came to the court of the Magistrate who passed another preliminary order on 22.2.1988.
Before going into further facts, it may be mentioned that a very specific plea exists in the writ petition in para No. 18 concerning the existence of the two preliminary orders. For ready reference, the said paragraph must be quoted here:
That admittedly two orders u/s 145(1) of the Act were passed; one on 3.3.1987 and another in 22.2.1988. This fact rendered the entire proceeding illegal and void, as the date of preliminary order is of vital importance for determining the possession of the parties. The Respondent No. 1 has illegally observed that it was only irregularity and the proceedings were not affected.
In the counter affidavit sworn by Sheo Karan Singh alleging himself to be the husband of Smt. Sukhrani, opposite party No. 3 and also alleging himself to be the Pairokar of opposite party No. 4, the aforesaid paragraph has been replied in Para No. 49 which reads thus:
That the contents of Para No. 18 of the writ petition are denied. There is no illegality in the orders and the technical errors of law do not attract interference in writ jurisdiction.
To complete the chronology of the events, it may be mentioned that before the Magistrate the evidence by the parties was led whereupon he passed a final order on 13.1.1989 (Annexure 9) holding the opposite parties Nos. 3 and 4 to be entitled to possession which order was challenged by the Petitioners in Revision but the Revisional Court dismissed it vide order dated 10.5.1990 (Annexure 11) and this is how in this writ petition, the aforesaid two orders have come up to be challenged.
Sri S.K. Shukla and Sri R.K. Pandey have appeared on behalf of the Petitioners and have argued the matter at length. Sri R.R. Shivaharey has appeared on behalf of the opposite parties Nos. 3 and 4 and has also argued the matter on their behalf with ability.
Sri Shivaharey has placed reliance on two decisions. The first one is reported in Harpal v. State of U.P. and Ors. 1985 AWC 528. The other ruling is Dharampcd v. Ram Sumer 1993 ACC 140. It may be mentioned that so far as the case of Harped (supra) is concerned, the learned Single Judge has gone into question of what should happen in a matter pending u/s 145, Code of Criminal Procedure when final orders have been passed by Civil Court. In the case of Dharampal (supra), the point in controversy raised before the Hon''ble Supreme Court was that the property if attached by the Magistrate and handed over to the Receiver, the Civil Court''s order would have the effect of nullifying the Magistrate''s order.
It may be mentioned that the two rulings cited by Sri Shivaharey have absolutely no application to the facts of the present case and, therefore, are distinguishable.
By the supplementary affidavit filed and the reply given to that affidavit, it is apparent that the matter has already gone to the Civil Court and orders have been passed concerning the rights of the parties in the aforesaid two plots. Sri Shivaharey was emphatic in his argument that since the matter has already been dealt with by the Civil Court, these orders should be made the basis of any final adjudication that is going to be made by this Court concerning the two orders sought to be quashed in this writ petition.
Sri Shukla, learned Counsel for the Petitioners, however, was equally emphatic on his point that the origin of the proceedings u/s 145, Code of Criminal Procedure rests solely upon the preliminary order. In this connection, he relied upon the fact that two preliminary orders are basis of the instant proceedings u/s 145, Code of Criminal Procedure. He, therefore, contended whatever may be party''s stand in the civil court, these two orders cannot be permitted to stand because they are in the teeth of the provisions of Section 145, Code of Criminal Procedure.
It is true that some arguments were advanced concerning the merits of the matter also but this Court is refraining from considering the claim of the respective side whether, it relates to Section 145, Code of Criminal Procedure or concerning rights of the Civil Court.
In order to decide these two matters, it may be mentioned that Section 145, Code of Criminal Procedure empowers a Magistrate to proceed only after making an order in writing and recording his satisfaction about apprehension of breach of peace concerning any land or water or boundaries. This order is commonly known as the preliminary order. A Magistrate is then called upon to take evidence as may be produced by the parties and then "DECIDE WHETHER ANY AND WHICH OF THE PARTIES WAS, ON THE DATE OF THE ORDER MADE BY HIM UNDER Sub-section (1), IN POSSESSION OF THE SUBJECT OF DISPUTE.
In this view of legal position, the date of preliminary order is of paramount importance in proceedings u/s 145, Code of Criminal Procedure. In other words, law can never envisage and put up with proceedings u/s 145, Code of Criminal Procedure, where two preliminary orders exist. As noted above, the specific averments as to the two preliminary orders passed by the Magistrate have not been controverted by any sufficient manner. In other words, Sri Shivaharey, learned Counsel for the opposite parties Nos. 3 and 4 very rightly argued that the record speaks and, therefore, what is apparent from the record cannot be obliterated.
In view of what has been noted above, the entire proceedings u/s 145, Code of Criminal Procedure was an Illegal exercise. Therefore, the order passed by the Magistrate on 13.1.1989 must fail and has to be quashed. Likewise, the order of the Revisional Court dated 10.5.1990 should for the same reasons be quashed simultaneously.
In view of the aforesaid discussion, the writ petition succeeds and is allowed and the orders dated 13.1.1989 and 10.5.1990 are quashed. The parties will bear their own costs. Criminal Misc. Application No. 8615 of 1990 is dismissed.