Daitari Swain vs Sudhir Kumar Mohapatra

J.K. Mohanty, J.—The first party, Sudhir Kumar Mohapatra (opposite party in this revision), filed a petition before the City Magistrate on 29-8-1970 alleging that he was running a sweet-meat shop on a piece of railway land measuring 215 square feet in Station Bazar, Cuttack and that the second party, Daitari Swain {Petitioner in this revision with the help of hooligans, was out to evict him forcibly from the said sweet-meat shop and trying to occupy the same. As there was likelihood of serious clash and imminent breach of peace, the first party prayed for passing an ex parte order u/s 141(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land. The learned Magistrate, after being satisfied, passed an ex parte order u/s 144(2), Code of Criminal Procedure restraining the second party from entering upon the disputed land and directed the second party to appear in his Court on 14-9-1970 and to show cause as to why the above order should not be made absolute against him. The second party appeared on 14-9-1970 and raised the question of maintainability of the aforesaid order. On 17-9-1910 the learned Magistrate after hearing both parties converted the proceeding to one u/s 145, Code of Criminal Procedure and attached the disputed land and asked the parties to file their written statements, affidavits and documents by the next date. The relevant portion of the order is quoted below:

Since both parties claim exclusive possession and there is serious apprehension of breach of peace, the proceeding is converted to one u/s 145, Code of Criminal Procedure. Attach the land symbolically. Notice the parties to file under section, affidavits and documents by the next date.

Thereafter the parties filed their written statements, affidavits and documents and after hearing the parties, the learned Magistrate found that the first party was in possession of the disputed land and he had been dispossessed forcibly by the second party within two months next before the preliminary order and directed that the first party be restored to his possession until evicted therefrom in due course of law. Against the said order, the second party filed Criminal Revision No. 15 of 1973 before the Additional District Magistrate, Cuttack which was also dismissed on 7-7-1973. Against that, the second party-petitioner has come to this Court with the present revision.

The case of the first party is that the disputed land belongs to the South Eastern Railway. The second party wanted to take lease of the same and being in need of money approached the first party to finance him to which the first party agreed. On 30-9-1969 there was an agreement between the parties that the first party would pay to the second party the security deposit and other charges, rent at the rate of Rs. 30/- per month for use and occupation of the land and shall make construction at his cost and carryon business on the said house and the second party shall not evict him from the land. Accordingly, the first party advanced money to the second party, paid rent at the rate of Rs. 301- per month for a year in advance, constructed house on the disputed land, run his sweet-meat shop and remained in peaceful possession Without any disturbance. His further case is that he closed his shop for the Orissa Bund Hartal on 27-7-1970 and went to his village and taking advantage of his absence the second party forcibly and wrongfully entered into his shop. So he was compelled to file a Petition before the City Magistrate on 5-8-1970 which was sent to G.R.P.S. for enquiry and report. As the police delayed the matter, he filed a petition u/s 144, Code of Criminal Procedure which was subsequently converted into a proceeding u/s 145, Code of Criminal Procedure as aforesaid.

The case of the second party is that he is in possession of the disputed land as he has taken lease from the railway and is paying due rent for the possession and occupation of the land in dispute.

In this revision the following points have been raised by the learned Counsel appearing on behalf of the second party Petitioner.

(1) That in this case no formal preliminary order u/s 145, Code of Criminal Procedure has been drawn up;

(2) That a copy of the preliminary order has not been served on the parties and no copy of the order has been published by being affixed to some conspicuous place at or near the subject of dispute as required under Sub-section (3) of Section 145, Criminal Procedure Code;

(3) That the affidavits have not been considered; and

(4) That for the purpose of finding out possession the learned Magistrate has examined the police officer and relied on the evidence of the police officer in arriving at the question of possession which is illegal.

So far as the first point is concerned, it is seen from the order-sheets of the learned Magistrate that a proceeding u/s 144, Code of Criminal Procedure was started and as there was serious apprehension of breach of peace, the second party was restrained from entering upon the disputed land. On 17-9-1970 the said 144 proceeding was converted into a proceeding u/s 145, Code of Criminal Procedure and as the learned Magistrate was satisfied, on the materials placed before him, that a dispute likely to cause a breach of the peace existed concerning the disputed land, he passed the order u/s 141, Code of Criminal Procedure as quoted above. No doubt, no formal preliminary order u/s 145(1) was drawn up. The question now arises for consideration is whether in the absence of formal preliminary order u/s 145(1), the proceeding is without jurisdiction. This question came up for decision before a Division Bench of this Court reported in Padma Charan Behera and Ors. v. Prafulla Chandra Naik and Ors. 1975 (1) C.L.R. 110, where it was held:

Failure to draw up a formal preliminary order u/s 145(1) is a mere irregularity and does not affect the question of jurisdiction. Such a proceeding is not liable to be quashed unless prejudice is shown and unless such an objection is taken at the earliest opportunity as prescribed in Section 537, Code of Criminal Procedure (Old).

If the initial order is not challenged as being without jurisdiction and the party files written statement enters into evidence and awaits till the off chance of getting a favourable judgment he cannot be allowed to assail the final order.

In this case, first there was a proceeding u/s 144, Code of Criminal Procedure which was subsequently converted into a proceeding u/s 145, Criminal Procedure Code. The order u/s 145(1), Code of Criminal Procedure was passed in presence of both parties after hearing them. Thereafter the parties being cognizant of the order filed their written statements, affidavits and other documents and tack part in the proceeding. The Petitioner has also not been able to show that any prejudice has been caused to him as no formal preliminary order u/s 145(1), Code of Criminal Procedure was drawn up in this case. On the other hand, in paragraph 1 of the revision petition it has been mentioned:

That in respect of a piece of land measuring about 215 sq. ft. situates at Station Bazar, Cuttack under railway market belonging to the railway, a proceeding u/s 145 Code of Criminal Procedure was initiated at the instance of the opposite party who figured as the first party in the said proceeding. After the initiation of the proceeding preliminary notice u/s 145, Code of Criminal Procedure was issued which was duly promulgated at the spot by the railway police under whose jurisdiction the property situates.

In view of the above, I find there is no merit in the first point raised by the learned Counsel appearing for the second party-Petitioner.

So far as point No. 2 regarding non-compliance of Sub-section (3) of Section 145, Code of Criminal Procedure is concerned, it is contended that no notice of the preliminary order has been served on the parties and in any event no copy of the order has been published by being affixed to some conspicuous place at or near the subject of dispute. As discussed above, the parties had sufficient notice of the proceeding and they having taken part in the proceeding and having filed their written statements, affidavits and documents in support of their respective cases, the question of non-service of notice on the parties cannot be raised now. Regarding the question that a copy of the order has not been published by being affixed to some conspicuous place at or near the subject of dispute, learned Counsel appearing for the Petitioner submitted that Section 145(3), Code of Criminal Procedure imposed a duty on the Court and must be taken to be mandatory and non-compliance with this provision would vitiate the proceeding and the proceeding should be quashed on that score alone. On the other hand, it is contended by the learned Counsel for the opposite party that publication of the copy of the order u/s 145(3), Code of Criminal Procedure related to the matter of procedure only and not of jurisdiction and it is a curable irregularity, as per Section 37, Code of Criminal Procedure (Old).

In this case, as already discussed, Section 145(1), Code of Criminal Procedure has been complied with and the Magistrate had jurisdiction to deal with the case. The mere fact that he omitted to have a copy of such order published by affixing It to some conspicuous place at or near the subject-matter of dispute did not deprive him of his jurisdiction, but was only an irregularity in the procedure. The object for enacting Section 145, Code of Criminal Procedure was to bring to an end by a summary process disputes relating to land etc. which are in their nature likely to end in breaches of the peace. It is difficult to hold that if the notice is not published in the manner prescribed, the Magistrate loses jurisdiction to hold an enquiry into the question of possession So non-publication of the order at or near the subject-matter of dispute is an irregularity by reason of which the revisional Court can set aside the proceedings only if it is shown that any party has been prejudiced thereby. On behalf of the Petitioner nothing has been shown that he has been prejudiced if any way. In the present case not only both parties to the dispute had notice of the order u/s 145(1). but also had filed their written statements affidavits and documents in support of their respective cases and the matter was fully heard. They have not at any stage raised this objection which is now being raised. Further this may at least he an irregularity which is curable u/s 537. Code of Criminal Procedure (old). The Explanation appended to Section 537. Code of Criminal Procedure (old) is as follows:

In determining whether any error omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

In the present case no such objection has been taken before the learned Magistrate and even no ground has been taken in this revision in this regard. On the other hand, it has been stated in paragraph 1 of the revision petition (quoted above) that the order has been duly promulgated at the spot by the railway police. The learned Counsel appearing for the Petitioner is not able to point out as to what injury has been suffered by his client due to non-compliance of the provisions of Sub-section (3) of Section 145, Criminal Procedure Code. assuming that Sub-section (3) of Section 145, Code of Criminal Procedure has not been completed with. I therefore, hold that failure to publish a copy of the order by being affixed to some conspicuous place at or mar the subject-matter of dispute has not occasioned failure of justice and the order of the learned Magistrate cannot be set aside on that score.

So far as point No. 3 regarding non-consideration of the affidavits is concerned the learned Counsel for the second party-Petitioner pointed out the relevant portion lit the order of the teamed Magistrate Which reads as follows:

Perused the affidavits. Those are oath against oath. As such they should be made use of only in case they are found to be in consonance with the documents.

In view of the above observation of the learned Magistrate, it is argued that the learned Magistrate has not considered the affidavits. But on perusal of the judgment of the learned Magistrate, I find, the learned Magistrate has considered the affidavits and documents filed by both parties and has come to the conclusion that the first party was in possession of the disputed land and had been dispossessed by the second party within two months next before the order passed u/s 145(1), Criminal Procedure Code. In this case, on behalf of the first party, the agreement entered into between the parties which is in a stamped paper and by which the land was leased out by the second party to the first party has been filed, The first party has also filed the notices dated 10-4-1970, 18-5-1970 and 25-6-1970 served by the Estate Officer. South Eastern Rail way in a proceeding u/s 4(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 and a stamped receipt dated 1-7-1970 showing payment of rent to the second party. After considering the affidavits and the documents filed and the evidence adduced by both parries, the learned Magistrate has come to the aforesaid conclusion. The learned A.D.M. in revision has also considered the affidavits and the documents filed by both parties and after hearing the parties is found no merit in the contentions raised by the second party-Petitioner and confirmed the order of the learned Magistrate.

Regarding fourth point, it is found that the police officer was examined on behalf of the second party and in arriving at the conclusion the learned Magistrate has considered the affidavits and documents filed and the evidence adduced in this case. So I find no merit in this point raised by the learned Counsel appearing for the second party-Petitioner.

In view of the above, as all the points raised by the learned Counsel appearing for the second party-Petitioner fail, I find no merit in this revision which IS accordingly dismissed.

- Revision dismissed.