Dogar Singh vs Sub Divisional Magistrate, Jalalabad

V.S. Aggarwal, J. (Oral)

The sole question raised by the petitioner''s learned counsel in the present petition seeking quashing of police calendra is that petitioner is armed with an adinterim order of the civil Court and that the Civil suit is pending with respect to the controversy. Few of the facts can be reiterated herein as under.

The petitioner contends that he is in cultivating possession of the land in dispute. Apprehending danger from respondent No. 2 that he may be not dispossessed except in due course of law, he filed a civil suit for grant of adinterim injunction, which was granted holding that prima facie petitioner is in possession. It is being informed that the said adinterim injunction was confirmed and respondent No. 2 has since been restrained from dispossessing the petitioner from the suit property. A report was submitted by Assistant Sub Inspector Jangir Singh to the Sub Divisional Executive Magistrate. There also it has been mentioned that there is apprehension of breach of peace, but petitioner prima facie is stated to be in possession of the same. Learned Sub Divisional Executive Magistrate acting on the same, recorded vide the impugned order that there is apprehension of breach of peace. Naib Tehsildar, Jallalabad was appointed as receiver.

Once the civil suit was pending and there was any apprehension of breach of peace the Executive Magistrate could take recourse to proceedings under Section 107/151 Code of Criminal Procedure. There could not be a parallel trial or proceeding pertaining to dispute regarding possession before the Executive Magistrate once the matter was before the civil Court. There was no justification thus for passing the impugned order appointing the receiver to the same effect. In the face of decisions in the case of Rajbir Singh v. Maha Singh, 1996(3) R.C.R. 71 and Sukhdev Singh v. Sub Divisional Magistrate, Sirsa, 1996(3) Recent C.R. 349 , the impugned order dated 9.4.1996 cannot be sustained. Accordingly, the petition is allowed and proceedings before the Sub Divisional Executive Magistrate including the order dated 9.4.1996 are quashed.