Kailash Devi vs State of Himachal Pradesh and Kishori Lal

Kuldip Singh, Judge

This petition has been directed against the judgment dated 28.7.2011 passed by Addl. Sessions Judge, Fast Track Court, Una in Criminal Revision No. 1/2011, affirming order dated 27.10.2010 passed by Sub Divisional Magistrate, Una in case No. 129/4/2010. The facts in brief are that respondent No. 2 had filed a complaint that land depicted as Khewat No. 282, Khatoni No. 442, comprised in khasra Nos. 197, 198, measuring 0-02-12 hects. situate at up mohal, Panoh 2nd, Tehsil Una is owned by State of Himachal Pradesh but is in possession of respondent No. 2. There is a constructed room of respondent No. 2 on the spot. Smt. Kailash Devi W/o Ashok Kumar, R/o Panoh with her servants had broken the lock of the room of respondent No. 2 and forcibly put her articles. The respondent No. 2 had been threatened that if he would claim any right over the land and the room then he would be killed. The respondent No. 2 had submitted an application to the Panchayat but no action has been taken. The said people have unloaded two trolleys of sand in front of the room and closed the path. They intend to take forcible possession of the property in question. The respondent No. 2 of his own intended to vacate the land and hand over possession to the State. A request was made for taking appropriate action.

The Sub Divisional Magistrate issued notice u/s 145(1) Cr.P.C. to respondent No. 2, for 30.9.2010. Thereafter evidence was recorded. On 27.10.2010, the Sub Divisional Magistrate declared that respondent No. 2 is in possession of one room tin roofed house and restrained the petitioner or any other person from disturbing his possession except in due course of law. A direction was given to Tehsildar-cum-Executive Magistrate, Una for restoration of possession of one room house on Khasra No. 197 to respondent No. 2 by associating SHO, Una and local Gram Panchayat in 10 days, in case petitioner or any body in possession of the house fails to comply with the order within seven days.

The order dated 27.10.2010 was assailed in the revision and Addl. Sessions Judge on 28.7.2011 dismissed the revision. The judgment dated 28.7.2011 has been assailed in the present petition.

Heard. It has been submitted by learned counsel for the petitioner that petitioner was not served in the proceedings before Sub Divisional Magistrate. The compromise dated 25.5.2006 belies the case of the respondent No. 2 and establishes the possession of petitioner over the room in question. The respondent No. 2 himself has stated in the complaint that he intends to hand over possession of the room to the Government. The Sub Divisional Magistrate has not recorded satisfaction that dispute likely to cause breach of peace exists regarding land and the room. The Addl. Sessions Judge has also erred in affirming the order of Sub Divisional Magistrate. The counsel has relied Gabrial Thankayyam and Another Vs. Narayanan Nadar Perumal Nadar and Others, and Digamber Jain Sabha, Simla and another v. State of Himachal Pradesh and another 1981 Cri.L.J. 272.

The learned counsel for respondent No. 2 has submitted that petitioner was served in the proceedings before Sub Divisional Magistrate. She opted not to contest and oppose the petition filed by respondent No. 2. He supported the order dated 27.10.2010 and judgment dated 28.7.2011.

The respondent No. 2 submitted complaint dated 19.8.2010. The Sub Divisional Magistrate on 22.9.2010 issued notice u/s 145(1) Cr.P.C. to petitioner. It has been observed in order dated 22.9.2010 that petitioner has been threatening the respondent No. 2 not to live in the property. This dispute may occasion breach of public peace also. The dispute is concerning land and possession over it, including a single room structure. The parties are quite aggressive in their conduct and trying to take possession forcefully. The Sub Divisional Magistrate in these circumstances took cognizance and issued notice u/s 145(1) Cr.P.C. to petitioner returnable on 30.9.2010. As per report of Chowkidar Panchayat, Badsala, the petitioner was found in her house. She refused to take notice and said that the land is not in her name nor she has any dispute.

In revision against the order dated 27.10.2010, a ground has been taken that no notice was served or refused by petitioner. The Panchayat Chowkidar never came to serve notice to the petitioner. There is no averment that the report of the Panchayat Chowkidar indicating that petitioner had refused to take service of notice is false. No ground has been taken that Chowkidar for any reason gave false report regarding the service of notice or he gave report in collusion with respondent No. 2. The notice was refused by petitioner, hence petitioner will be deemed to have been served. In the report on the notice Chowkidar reported that petitioner had refused to take notice on the ground that land is not in her name nor she has any dispute. In these circumstances, petitioner cannot be heard to say that she was not served in the proceedings before Sub Divisional Magistrate.

The petitioner has placed on record a copy of alleged compromise dated 25.5.2006 in the present petition. This compromise was not placed on record before Sub Divisional Magistrate nor, a copy of this compromise was placed in the revision before Addl. Sessions Judge. The perusal of judgment dated 28.7.2011 indicates that compromise dated 25.5.2006 was not relied by petitioner when the revision was heard by Addl. Sessions Judge. Thus, petitioner cannot be heard on compromise dated 25.5.2005.

Kishori Lal in his statement on oath has stated that he had constructed a room on khasra Nos. 197, 198. Smt. Kailash Devi about a month back had broken the lock of that room and has taken over the room. The possession of the room may be restored to him. He is a poor man. Kishori Lal in his statement has given his age about 82 years. Bishamber Dass, Gurbachan Singh and Satish Kumar in their common statement have stated that they are aware of the dispute between Kishori Lal and Kailasho over the room. The room has been constructed by Kishori Lal. The room was constructed kachha by Kishori Lal in the year 1959-60. Thereafter it was made pacca with tin roof. Smt. Kailasho has forcibly put her lock in the room a month back and got unloaded sand in front of the door of the room. She has even constructed a wall there.

In Gabrial Thankayyam case (supra) it has been held that the foundation of an action under the sub section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction.

In Digamber Jain Sabha case (supra), it has been held that simply because a dispute exists, which is admittedly of a civil nature, it does not follow that there is likelihood of breach of peace and so action u/s 145 must be taken. In the present case Sub Divisional Magistrate has recorded satisfaction in the preliminary order u/s 145 Cr.P.C. that there is apprehension of breach of peace, therefore, both the cases relied by learned counsel for the petitioner are of no help to the petitioner.

In the evidence, it has come that about a month back petitioner has put the lock on the room which has been constructed by respondent No. 2 long time back. The respondent No. 2 had requested to petitioner to restore possession but without any result. The Sub Divisional Magistrate in his order dated 29.9.2010 has recorded satisfaction that dispute may occasion breach of public peace. This satisfaction was enough to proceed u/s 145(1) Cr.P.C. More particularly when petitioner opted not to contest the petition.

There is no force in the contention of the petitioner that respondent No. 2 himself intends to hand over the land, room to the State as stated by him in his complaint dated 19.8.2010 and therefore complaint is not maintainable. The petitioner has no right to take law in her own hands. The submission of the learned counsel for the petitioner that relief more then prayed by the petitioner has been given by the Sub Divisional Magistrate by way of order dated 27.10.2010 and this error has been repeated by the Addl. Sessions Judge. In the complaint the complainant has prayed for appropriate relief. The proceedings are summary in nature. It is not the case of the petitioner that relief granted by the Sub Divisional Magistrate is beyond his powers u/s 145 Cr.P.C. The scope of interference u/s 482 Cr.P.C. is limited.

There is no error of jurisdiction nor there is any perversity in the orders of the Sub Divisional Magistrate or Addl. Sessions Judge. There is no merit in the petition. In view of above, petition is dismissed. The Cr.MP No. 942 of 2011 is infructuous and interim order dated 5.1.2012 is vacated. Record of the Sub Divisional Magistrate be sent back immediately alongwith a copy of this judgment.