Lord Shiva Charitable Trust vs State of Haryana

K.K. Srivastava, J.

This is a petition filed by Lord Shiva Charitable Trust through trustee/Secretary, Shri Som Parkash son of Shri Inderjit, Shri Desh Kamal son of Shri Banwari Lal and Shri Som Parkash son of Shri Inderjit aforesaid all residents of village & Post Office Jandwala Bishnoian, Tehsil Dabwali District Sirsa (Now all residents of Gali Bombay Wali, Rori Bazar, Sirsa) seeking quashing of orders dated 7.2.1997 passed by Sub Divisional Magistrate Sirsa, respondent No. 2, in respect of the proceedings under Sections 145 and 146 Cr.P.C. in the case titled as State v. B.D. Goyal and others. The copies of the orders passed by respondent No. 2, Sub Divisional Magistrate, Sirsa have been placed on record as Annexures P1 and P2. The petitioners pray for the quashing of these two orders dated 7.2.1997, Annexures P1 and P2. The proceedings under Sections 145 and 146 Cr.P.C. have been initiated on a complaint/Calendra filed before respondent No. 2. The petitioners also seek quashing of order dated 28.2.1997, copy Annexure P3, passed by Sub Divisional Magistrate, Sirsa on a petition moved by the petitioners under Section 145(5) Cr.P.C. read with Section 146 Cr.P.C.

Lord Shiva Charitable Trust (for short hereinafter to be referred as `Trust'') is said to be in a exclusive possession over the properties detailed in para 1 of the petition including buildings constructed thereon. The said property is the subject matter of the dispute in proceedings under Sections 145 and 146 Cr.P.C. pending before the Sub Divisional Magistrate, Sirsa, respondent No. 2. As per the details of the properties given in para 1 of the petition, the disputed property comprised of 14 kanals 16 marlas in 8 plots of land bearing Khasra Nos. 64/16/1/2(018), 25/1/1 (32), 82/5/1/2 (213), 64/15/2/1 (28), 15/1/2 (119), 1621 (30), 24/2/2 (06), 26/2 (010) and the other land in dispute is of the share of 138/345 in an area of 17 kanals 5 marlas comprising of 7 plots bearing Nos. 63/112 (21), 20/2 (314), 64/14/2/2 (13), 16/1/2 (32), 25/1/2 (018), 25/2 (318), 82/5/2 (29). The area of the land possessed by petitioner No. 1, Trust comes to 16 kanals 18 marlas. It is alleged by the petitioners that Shri Sahab Ram Godara is the Chairman of the Trust while Som Parkash, petitioner No. 3 is its Secretary and trustee. The other trustees of petitioner No. 1, Trust, are Shri Banwari Lal son of Shri Mani Ram, r/o Jandwala Bishnoi, District Sirsa, Shri Gobind Ram son of Shri Prahlad Rai, r/o Shamshabad, Tehsil Sirsa, Shri Rajinder Kumar son of Shri Surja Ram, r/o Sangaria, Shri Mani Ram son of Shri Ram Rakh, r/o V. Seeto Gunno, Tehsil Abohar, Shri Inderjeet son of Shri Mani Ram r/o Jandwala Bishnoian, Shri Punam son of Shri Het Ram, r/o Seeto Gunno, Tehsil Abohar and Shri Mahabir son of Shri Amar Singh r/o Dabwali, District Sirsa. Petitioner No. 2, Shri Desh Kamal is an employee of petitioner No. 1, Trust and is also the PrincipalcumAdministrator of Lord Shiva College of Pharmacy (for short hereinafter to be referred as `College of Pharmacy''), an institution run by petitioner No. 1, Trust. The contention of the petitioners is that Shri Desh Kamal, petitioner No. 2, is in exclusive possession as a tenant of premises bearing Municipal Unit No. B5/316 situated in Gali Bombay Wali, Rori Bazar, in the town of Sirsa on a monthly rent of Rs. 300/. Shri Som Parkash, petitioner No. 3 is in exclusive possession as an owner of land measuring 10 kanals 7 marlas being 207/345 share of the total land measuring 17 kanals 6 marlas situated in Village Shamshabad, Tehsil and District Sirsa within Municipal limits of Sirsa Town. It was further averred that petitioner No. 1, Trust had no concern with the properties occupied by petitioner No. 2 as tenant and the properties described in para 3 of the petition i.e. an area of 10 kanals 7 marlas are possessed by petitioner No. 3, Shri Som Parkash. Petitioner No. 2, Shri Desh Kamal and petitioner No. 3, Shri Som Parkash, it was alleged, were in possession of their respective properties in their individual capacity.

On 4.2.1997 at about 5.30 p.m. Dr. B.D. Goyal, Shri Sameer Goyal son of Dr. B.D. Goyal, Shri Sukhdev resident of Baraguda, Shri Ram Murti, resident of Khareka, Shri Mohan, Ex. Sarpanch, Subakhera, Shri Bhura, resident of Raghwan and 7/8 other persons forcibly entered the premises of the said College of Pharmacy. Major Singh, one of the Security Guards posted in the College premises lodged FIR in Police Station City Sirsa on 5.2.1997 in respect of the said occurrence which was registered under Sections 448, 148, 149, 506 IPC, vide copy of FIR Annexure P4/P4/T. It is further alleged that respondent No. 3, Shri Balbir Singh, SHOInspector, Police Station City, Sirsa, instead of investigating into the allegations made in the FIR, copy Annexure P4, colluded with respondent No. 4, Dr. B.D. Goyal with the purpose to illegally grab the properties of petitioner Nos. 2 and 3 individually. Respondent No. 3, SHO, Balbir Singh filed a complaint/Calendra under Section 145 Cr.P.C. before respondent No. 2, Sub Divisional Magistrate, Sirsa and also proceeded against petitioner No. 2, Shri Desh Kamal under Sections 107/150 Cr.P.C. The copy of the complaint/Calendra filed before respondent No. 2, SubDivisional Magistrate, Sirsa, is annexed as Annexure P5/P5/T. The learned Sub Divisional Magistrate, Sirsa, respondent No. 2 passed interim orders under Sections 145 and 146 Cr.P.C., Annexures P1 and P2 without duly following the procedure laid down in Section 145 Cr.P.C. The proceedings were initiated despite the fact that there was no material for the satisfaction of the Sub Divisional Magistrate, Sirsa, respondent No. 2 regarding the dispute ranging in between the parties with regard to possession over the properties and causing an apprehension of breach of peace relating to the disputed properties. The petitioners filed a petition under Section 482 Cr.P.C. in this Court being Criminal Miscellaneous No. 4075M of 1997 which came up for hearing before Hon''ble R.L. Anand, J. on 24.2.1997 and was disposed of with a direction that the petitioners should avail of the remedy as provided under Section 145(5) Cr.P.C. and 146 Cr.P.C. before the Sub Divisional Magistrate, respondent No. 2. The copy of the order passed by the said Bench was placed on record as Annexure P6. The petitioners, accordingly filed an application under Sections 145(5)/146 Cr.P.C. before respondent No. 2 praying for the cancellation of the earlier order dated 7.2.1997, vide copy Annexure P7.

Notice was issued to the respondents and they filed their written statement on 27.2.1997, copy Annexure P8. Respondent No. 2, Sub Divisional Magistrate, Sirsa, after hearing both the sides passed an order, copy Annexure P3, vide which he rejected the application of the petitioners. It has been contended that the order passed by respondent No. 2, vide copy Annexure P3, is against law and facts and based on conjectures and surmises. The petitioners also alleged that the ownership and possession of petitioner No. 1, Trust, of the land detailed in para 1 of the petition along with its buildings was conclusively held by the Civil Court decree dated 7.3.1992, copy annexure P9. In the said civil suit, respondent No. 4, Dr. B.D. Goyal, resident of Goyal Nursing Home, Dabwali Road, Sirsa had filed his written statement admitting the claim of petitioner No. 1. A copy of the written statement was also annexed as Annexure P10. A photocopy of the written statement of respondent No. 4 was annexed as Annexure P11. It is alleged that mutation was sanctioned on the basis of Civil Court decree, copy Annexure P9. The copy of the mutation order has also been filed as Annexure P12/P12/T.

Petitioner No. 2, Shri Desh Kamal filed a civil suit seeking the relief of permanent injunction against Shri Bhajan Lal and Shri Prithvi Raj sons of Shri Nathu Ram, residents of Rori Bazar, Sirsa in respect of house forming part of the main building bearing Municipal housetax unit No. B5/316 constructed over an area measuring 161/2 feet x 75 feet and comprising of two rooms and one Hall, latrine, bathroom on the ground floor, four rooms, two latrines, two bathrooms, one kitchen, one store, one verandah on the first floor, and one room on the second floor bounded as under :

East Shop of Nathu

West Private passage

North Remaining portion of the house

South Building of Mahabir Prashad Ratusaria and Taj Emporium etc.

This property was situated at Gali Bombay Wali, Rori Bazar, Sirsa. The Civil Court granted ad interim injunction in the said suit which was subsequently confirmed vide order dated 7.12.1995, copy Annexure P13. Petitioner No. 3, Shri Som Parkash also apprehended some dispute and trouble and he also filed a civil suit for declaration to the effect that he was the owner in possession of the land measuring 10 kanals 7 marlas being 207/345 share of the total land measuring 17 kanals 5 marlas comprising in square No. 63, Killa No. 11/2 (21) 20/2 (314), Sq. No. 64, Killa No. 15/2/2 (13), 16/1 (32) 25/1/2 (018), 25/2 (318) and Sq. No. 82, Killa No. 5/2 (29) situated in Village Shamshabad, Tehsil and District Sirsa and within the Municipal limits of Sirsa Town. The said suit was decreed vide order and decree dated 24.4.1992, copy Annexure P14 and copy of the decree was attached as Annexure P15. The mutation was also sanctioned vide mutation No. 2297, copy Annexure P16/P16/T. Respondent No. 4, Dr. B.D. Goyal also filed a suit No. 184 of 1989 dated 23.10.1989 in the Court of Senior Sub Judge, Sirsa on behalf of Mrs. Phool Goyal, himself, Shri Babu Ram son of Shri Dhan Raj, Shri Krishan Lal son of Shri Farangi Lal, Shri Satish Kumar son of Shri Nathu Ram, Shri Ramesh Kumar, Income Tax Practitioner, Mrs. Rekha Mittal, wife of Shri Ramesh Kumar, Shri Jagdish Rai Gupta son of Shri Nathu Ram, Dr. K.C. Garg son of Shri Harjas Ram, Shri Bimla Rai son of Shri Des Raj. Respondent No. 4 and other co plaintiffs sought relief of permanent injunction against Shri S.K. Gupta, Shri M.C. Goyal and Shri Hakam Rai restraining them for claiming any right over the properties of Trust on the basis that they have no concern with the management or trusteeship of the Trust which was ultimately dismissed as withdrawn vide order dated 7.8.1992 passed by Sub Judge Ist Class, Sirsa vide copy of order Annexure P17 passed on the basis of statement of Shri K.R. Jindal and Shri S.S. Goyal, Advocates for the plaintiffs, copy of which was attached as Annexure P18. It was further alleged that in order to put an end to all the disputes with respect to the management and running of petitioner No. 1, Trust, Dr. K.C. Garg, Smt. Rekha Mittal, Shri Ramesh Kumar Mittal, Shri Bimal Rai Goyal, Dr. B.D. Goyal, Shri Babu Ram and Shri Krishan submitted their resignations from the Chairmanship and membership of petitioner No. 1, Trust. The copies of these letters of resignations have also been placed on record as Annexures P19 to P28 respectively.

The contention of the petitioners is that the series of litigations referred to above would go to show that there was never any dispute regarding the trusteeship and management of the Trust and also the College of Pharmacy, Sirsa. It was averred that respondent No. 3, SHO, had deliberately, illegally and with a mala fide intention tried to create a dispute and submitted the complaint/Calendra under Section 145 Cr.P.C. with the object that the petitioners may be ousted from the management of the Trust and College of Pharmacy under the cover of order passed by respondent No. 2. The petitioners have further contended that the learned Sub Divisional Magistrate, respondent No. 2, has not noticed any of the documents showing that the Trust and Colleges of Pharmacy is neither owned or run by respondent No. 4 or any of the persons named as an accused in the FIR, copy Annexure P4. The learned Sub Divisional Magistrate has also wrongly mentioned in his order dated 28.2.1997, copy Annexure P3, that the possession of the disputed premises has been taken by the Receiver from Shri B.D. Goyal, though as a matter of fact no report of the Receiver in this behalf was made before him. The petitioners have attached copy of the application for supply of the copy of the report of the Receiver to the Sub Divisional Magistrate in which the petitioners were informed that no such document was available on the file, vide copies Annexures P30/P30/T. It was also mentioned that petitioner No. 2, Desh Kamal had deposited the examination fees of the students of the College in the Treasury on 3.2.1997 showing that petitioner No. 2, was the Principal of the said College. The copy of the challan form filled in this regard is attached as Annexure P31. The petitioners have referred to a letter written by the Sub Divisional Magistrate, Sirsa, respondent No. 2, on 8.2.1997 vide copy Annexures P32/P32/T to the Deputy Commissioner, Sirsa without arriving at any final conclusion in respect of the circumstances of the case. The Deputy Commissioner, Sirsa had written a D.O. No. 1141/CD dated 13.2.1997 to the Director Technical Education Haryana for the purpose of appointing of an Administrator of the College of Pharmacy, Sirsa, vide copy Annexure P32/P32/T. The petitioners contended that the Trust and the College of Pharmacy are greatly suffering as a result of the illegal action of respondents 2 and 3 and petitioners 2 and 3 are also suffering a great loss and mental agony and trouble due to the aforesaid actions of respondents 2 and 3. Petitioner No. 3, Shri Som Parkash filed his affidavit in respect of the averments made in the petition.

Learned counsel for the petitioners contended that there has been a series of civil litigation in Civil Court regarding the disputed properties. Respondent No. 4, Dr. B.D. Goyal, had been contesting his right, title and possession in respect of the disputed properties. He contended that the Receiver did not take possession of the disputed properties from respondent No. 4 and no report of the Receiver regarding the taking of possession was placed on record before respondent No. 2, Sub Divisional Magistrate, Sirsa. He has also referred to the reply filed by respondent No. 5 wherein he has not stated about the possession having been taken from respondent No. 4. He has only mentioned about his taking the possession of the house bearing No. B 15/316 on 10.2.1997 but has omitted to say as to from whom he had taken possession of the said property. The contents of para 3 in this regard are relevant which reads as under :

"That in reply to para 3 of the petition, it is submitted that petitioner No. 2, Desh Kamal Bishnoi is the Administrator of Lord Shiva College and in these days he is also working as Principal because Shri Siri Ram, Principal has already been sponsored by the Lord Shiva Charitable Trust for higher education i.e. for MPharma and he is now studying at Indore. The answeringrespondent in his capacity as Receiver has also taken over possession of the house bearing House Tax Unit No. B5/316 on 10.2.1997. Rest of the contents are required to be proved by the petitioners No. 2 and 3."

Notice was issued to the respondents who put in appearance and filed their written statements. Respondent No. 3, Shri Balbir Singh, SHOInspector, Police Station City Sirsa filed his separate written statement categorically denying the allegations of his collusion with respondent No. 4, Dr. B.D. Goyal. He, however, admitted that he had filed challan against both the parties under Sections 107/151 Cr.P.C. and submitted Calendra under Section 145 Cr.P.C. before Sub Divisional Magistrate, Sirsa for necessary action. He has defended his submission of Calendra before respondent No. 2, Sub Divisional Magistrate, Sirsa as there was apprehension of quarrel between both the parties. Respondent No. 5, Shri Hoshiar Singh Sivach, Block Development Officer, Sirsa Block, who was appointed as Receiver by respondent No. 2, Sub Divisional Magistrate, Sirsa filed his separate written statement contending, inter alia, that Desh Kamal Bishnoi is the Administrator of Lord Shiva College and was working as Principal because Shri Siri Ram, Principal had already been sponsored by the Lord Shiva Charitable Trust for higher education i.e. for M Pharma and is now studying at Indore. He has further mentioned that he had taken over the possession of the house bearing House Tax Unit No. B5/316 on 10.2.1997. In para 10 of the reply which is a reply in return to the petition he submitted as under :

"That in reply to para 10 of the petition, it is submitted that the answeringrespondent visited the properties in dispute on 8.2.1997 and at that time the Chowkidar Jagmal Singh and Major Singh Security Guard were present and the answeringrespondent directed them to inform the Principal, Lecturers and other collegestaff and the students to come present on 10.2.1997 at 9.00 a.m. so that studies of the students are not disturbed. On 10.2.1997 when the answeringrespondent visited the College at 9.00 a.m., the staff and the students were present there and in the presence of staff and the students, the answeringrespondent took possession of the college. Similarly, the answeringrespondent also took possession of the house in dispute situated in Gali Bombay wali, Sirsa on that very date. Some documentary record has been handed over to the answeringrespondent by Shri Krishan Kumar, Sub Inspector in the office of answeringrespondent i.e. B.D.O. Officer, Sirsa."

He submitted the following reply regarding the College staff and students meeting him, in para 11, as under :

"That contents of para No. 11 of the petition are correct and Collegestaff and students had met the answeringrespondent. It is also correct that answeringrespondent had disbursed the salary to the Principal, Lecturers and other staff members, whose names have been mentioned in this para. The answeringrespondent has maintained the records in his office in this behalf."

Respondent No. 4, Dr. B.D. Goyal filed his separate reply wherein he denied that Shri Sahib Ram Godara was the Chairman of petitioner No. 1, Trust and petitioner No. 3, Shri Som Parkash was the Secretary of the said Trust. He also denied that petitioner No. 2, Shri Desh Kamal was the Principalcum Administrator of the said Trust and alleged that he was in control of the Trust. The tenancy of Shri Desh Kamal was also denied. The possession of petitioner No. 2, Desh Kamal of Municipal Unit No. D5/316 was also denied. The possession of petitioner No. 2 over the land measuring 10 kanals 7 marlas was also denied. He averred about his own possession of the Trust properties. The Receiver had taken possession of the properties from him. He contended that only moot point is as to since when he i.e. respondent No. 4 is in possession of the disputed properties. He further contended that the civil suit is pending wherein the very existence of the Civil Court decree dated 7.3.1992 and other documents arising thereof have been challenged. He has alleged that the disputed house was purchased by him on payment of consideration through cheque and possession was delivered to him. He has also mentioned that the facts regarding suit No. 814 of 1989 dated 23.10.1989 have not been correctly stated. It has also been wrongly mentioned that Dr. K.C. Garg, Smt. Rekha Mittal, Shri Ramesh Kumar Mittal, and Shri Bimal Rai Goyal had submitted their resignations. He has enclosed the affidavits regarding the denial of such resignations from the Trusteeship of the Trust. He alleged that petitioner No. 2, Shri Desh Kamal wanted to grab the Trust properties and other properties from respondent No. 4, Dr. B.D. Goyal which resulted in the civil litigation from time to time. The properties in dispute have been taken over from him by the Receiver and same is to be restored to him by the Receiver. In para 11, respondent No. 4 made following allegations :

"That the facts have been incorrectly stated therein. The situation had been created by the illegal acts of Desh Kamal, petitioner No. 2 and Som Parkash, petitioner No. 3. Sahib Ram Godara is not the Chairman of the Trust. The petitioner No. 2, Desh Kamal is not the Principal or the Administrator. He does not posses the required qualifications. He is only a servant of Lord Shiva Charitable Trust which is under the absolute control of Dr. B.D. Goyal, respondent No. 4 and had been working under his directions and supervision. He and Som Parkash, respondent No. 3 along with other fictitious trustees mentioned in para 2 entered into a conspiracy to grab the properties subject matter of proceedings under Section 145 Cr.P.C. thereby creating turbulent situation which was likely to erupt into violence. Since the properties have been taken over by the Receiver under the orders of the Sub Divisional Magistrate and future career of the students who were to take the examination were at stake. Receiver directed Desh Kamal to handle the functions as a servant under his supervision. The Receiver has moved for appointment of a qualified person to look after the administration of the properties and the correspondence referred to substantiates its position."

It is significant to note that respondent No. 5 has in para 3 aforesaid mentioned about petitioner No. 2, Shri Desh Kamal as the Administrator of College of Pharmacy which fact has been denied by respondent No. 4, Dr. B.D. Goyal.

Learned counsel for the petitioners referred to the impugned orders passed by respondent No. 2, Sub Divisional Magistrate, Sirsa under Sections 145/146 Cr.P.C., Annexure P4 and challenged the same as being contrary to law inasmuch as a composite order was passed by the learned Sub Divisional Magistrate, Sirsa both under Section 145 Cr.P.C. as well as under Section 146 Cr.P.C. According to the submissions of the learned counsel for the petitioners the learned Sub Divisional Magistrate was required to pass initially the order under Section 145(1) Cr.P.C. and after initiating the proceedings under Section 145(1) Cr.P.C. he should have passed the order under Section 146 Cr.P.C. attaching the disputed property and appointing a Receiver for the same.

Learned counsel for the petitioners relied on a decision of a learned Single Judge of this Court in Jasbir Singh v. State of Haryana, 1997(1) RCR 573 wherein the scope of Section 145 Cr.P.C. was considered and a learned Single Judge held, inter alia, in para 8 as under :

"...... There are numerous authorities of the different High Court and that of the Apex Court as well to hold as to what are the essential conditions of a preliminary order to be observed by a Magistrate while passing such an order under Section 145 Cr.P.C. Such an order shall necessarily contain :

(1) a statement that the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace; (2) the grounds for his being so satisfied; (3) a correct description of the property in respect of which the proceedings are instituted; (4) the parties concerned in such dispute; and (5) a direction requiring the parties or either of them to attend the Court on a particular day and put in the written statement of their claim in respect of the fact of the actual possession of the land in dispute."

It was further held in para 9 as under :

"The above preliminary order passed in the present case is lacking in almost all the essential requirements of a preliminary order under Section 145 Cr.P.C. The Magistrate has not cared to narrate in his order the facts of the case so as to record a finding that he was satisfied as to the existence of a dispute between the parties which was likely to cause a breach of peace on the spot. All that is said on this point is that it has been reported by the Police Station, Pundri that there is a dispute regarding the possession of the land measuring 1038 Kanals situated in village Dussain District Kaithal. The section requires the satisfaction of the Magistrate and not of a party to the dispute or of the police who initiated the proceedings. In this way the Magistrate has not at all given the grounds of his being satisfied about a dispute with respect to the possession of the immovable property which is a cultivable land. He did not at all mention in his order that under what Khasra numbers the land in question was covered. It is possibly due to his zeal under the influence of some authority or lack of attention he has incorporated 1038 kanals of land in the order when actually 1 acre of land was involved with regard to which dispute had arisen for possession. The Magistrate has not recorded any direction to either party to file their objections with respect to the actual possession of the land in dispute which was necessary under the law. Instead he has asked the parties by notice that they should present themselves through their pleaders or in person and file the written statement and documents regarding their respective possession on the disputed land. Thus it emerges and is found that the preliminary order passed by the Magistrate is full of lacunae and against the law as laid down under Section 145 Cr.P.C. and therefore the proceedings based on this order are illegal and as such the entire superstructure must fall down. As the preliminary order is lacunas therefore the final order is equally not maintainable."

Learned counsel for the respondents, Shri S.S. Sidhu, placed reliance on the judgment of Hon''ble Supreme Court in the case of Mathuralal v. Bhanwarlal and another, AIR 1980 SC 242 wherein it was held in para 4 as under :

"Quite obviously, Ss. 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If S. 146 is torn out of its setting and read independently of Section 145, it is capable of being construed to mean that once an attachment is effective in any of the three situations mentioned therein, the dispute can only be resolved by a competent court and not by the Magistrate effecting the attachment. But S. 146 cannot be so separated from S. 145. It can only be read in the context of S. 145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may misled. That is one of the forged principles of construction. Let us therefore look at S. 145 and consider S. 146 in that context. S. 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to laywers practising in the criminal Courts as a Preliminary JUDGMENT stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under S. 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Ss. 145 and 146. In fact, the first of the situations in which an attachment may be effected under S. 146 of the 1973 Code has to be "at any time after making the order under Subs. (1) of S. 145" while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoined the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Subs. (3) of S. 145 prescribes the mode of service of the preliminary order on the parties. Sub s. (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence, adduced by them, to take further evidence if necessary and, if possible to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by Subs. (6). Provisions for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in S. 146 under which he may attach the subject of dispute until the determination of the rights of the parties by a competent Court. The scheme of Ss. 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements. Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order. On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such a possession he may say so. If he decides that one of the parties was in possession he declares the possession of such party. In the other two situations he attaches the property. Thus a proceedings begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding him one of three ways and making consequential orders. There is no half way house, there is no question of stopping in the middle and living (leaving ?) the parties to go to the civil Court. Proceeding may, however, be stopped at any time if one or other of the parties satisfies the Magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace. If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the Magistrate disappears. The Magistrate then cancels the preliminary order. This is provided by S. 145 subsec. (5). Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by S. 145(5), a proceeding initiated by preliminary order under S. 145(1) must run in full course. Now, in a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order. This is the first of the situations provided in S. 146(1) in which an attachment may be effected. There is no express stipulation in S. 146 that jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it, the obligation to proceed with the enquiry as prescribed by S. 145 subs. (4) is against any such implication. Suppose a magistrate draws up a preliminary order under S. 145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he to have no further jurisdiction in the matter. And yet he cannot make an order of attachment under S. 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1). There is no reason why we should adopt a construction which will lead to such inevitable contradictions. We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in S. 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of S. 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace."

Learned counsel for the respondents, Shri S.S. Sidhu submitted that the learned Sub Divisional Magistrate did not commit any error in passing a composite order under Sections 145(1) and 146(1) Cr.P.C. and has placed reliance on a Division Bench judgment of this Court reported in Nachhattar Singh and others v. Gurinder Singh and others, 1984(1) RCR 516. The Division Bench held that once the Magistrate is satisfied that the dispute likely to cause a breach of peace exists and there is adequate material before him to find that the case is clearly one of emergency needing urgent redress by way of attachment and the appointment of a Receiver, there is no reason why he should be debarred from proceeding forthwith under Section 146(1) Cr.P.C. It was held that indeed in a peculiar urgent situation calling for immediate action any substantial timelag between the primary order under Section 145(1) of the Code and the attachment and appointment of a Receiver, on the ground that the case is one of emergency, may not only be counterproductive but might well frustrate the very purpose of the preventive action visualised by these provisions. It is true that the satisfaction of the Magistrate that action under Section 145(1) of the Code is called for, must necessarily precede the finding that the case is of emergent nature requiring attachment of property. However, from this, it does not necessarily follow that the satisfaction of the Magistrate under Section 145(1) of the Code and the finding of emergency cannot be recorded in the said sequence in composite order.

The Division Bench held further that "the satisfaction regarding the existence of a dispute likely to cause a breach of peace under Section 145(1) of the Code and the further finding that the case is one of emergency under Section 146(1) of the Code can on adequate materials, be validly recorded in the same composite order. A reference was made to the Larger Bench to consider and decide the following question "Whether the satisfaction of the Magistrate with regard to the existence of a dispute likely to cause breach of peace under Section 145(1) Code of Criminal Procedure, 1973 (hereinafter referred as `the Code'') and the further finding that the case is one of emergency under Section 146(1) of the Code, can be validly recorded in the same composite order."

The Division Bench after considering the matter and going through the various decisions cited before the Bench held in para 5 as under :

"Now once it is held that Sections 145 and 146 of the new Code constitute a single scheme and are to be construed and applied harmoniously, the answer to the question posed at the outset seems to be selfevident. Once the Magistrate is satisfied that the dispute likely to cause a breach of peace exists and there is adequate material before him to find that the case is clearly one of emergency needing urgent redress by way of attachment and the appointment of a Receiver, there is no reason why he should be debarred from proceeding forthwith under Section 146(1) of the Code. Indeed, in a peculiar urgent situation, calling for immediate action, and substantial timelag betwixt the primary order under Section 145(1) of the Code and the attachment and appointment of a Receiver, on the ground that the case is one of emergency, may not only be counterproductive, but might well frustrate the very purpose of the preventive action visualised by these provisions. It is true that the satisfaction of the Magistrate that action under Section 145(1) of the Code is called for, must necessarily precede the finding that the case is of emergent nature requiring attachment of property. However, from this, it does not necessarily follow that the satisfaction of the Magistrate under Section 154(1) of the Code and the finding of emergency cannot be recorded in the said sequence in a composite order. On behalf of the petitioners, it was sought to be contended somewhat pedantically that there must necessarily be a timegap between the two and in any case the orders under Sections 145(1) and 146(1) of the Code must be recorded separately. I have already opined that a long delay in this context might well work mischief and equally I see no margin in recording the two orders on separate sheets of paper. I take the view that the satisfaction about the breach of peace and the finding of the case being one of emergency, can follow close on its heels on the basis of the same or overlapping materials and there can possibly be no infirmity in a composite order recording the same in succeeding paragraphs."

The conclusion was recorded by the Division Bench in para 13 which reads as under :

"To conclude both on principle and precedent, the answer to the question posed at the very outset is rendered in the affirmative and it is held that the satisfaction regarding the existence of a dispute likely to cause a breach of peace under Section 145(1) of the Code and the further finding that the case is one of emergency under Section 146(1) of the Code can on adequate materials, be validly recorded in the same composite order."

I am in respectful agreement with the view expressed by the Division Bench of this Court in Nachhattar Singh''s case (supra). The law that has been settled in Nachhattar Singh''s case (supra) is that legally it is permissible for the learned Executive Magistrate to pass a composite order under Sections 145(1) and 146(1) of the Code of Criminal Procedure, 1973 but in order of precedence, an order under Section 145(1) Cr.P.C. is to be passed before the learned Magistrate can pass an appropriate order looking to the exigency of the case before him under Section 146(1) Cr.P.C. In other words, the first and the primary thing which the learned Executive Magistrate has to consider from the material placed before him is that there existed an apprehension of breach of peace relating to immovable property, land etc. and that an order under Section 145(1) Cr.P.C. is required to be passed. It is only after recording such a satisfaction the learned Executive Magistrate is required to pass an order under Section 146(1) Cr.P.C. The necessary jurisdiction which is to be exercised by the learned Executive Magistrate under Section 145(1) Cr.P.C. is about his recording a satisfaction about the apprehension of breach of peace existing between the two sides in respect of the immovable property and once the learned Executive Magistrate assumes jurisdiction and initiates proceedings under Section 145(1) Cr.P.C., only then he will proceed to consider whether it was a case one of emergency in which the orders were required to be passed under Section 146(1) Cr.P.C. The impugned orders Annexure P1 and P2 passed by the Sub Divisional Magistrate, Sirsa under Sections 145/146 Cr.P.C. are to be examined in the light of the law settled by the Division Bench of this Court in Nachhatar Singh''s case (supra).

A bare perusal of the impugned orders passed by respondent No. 2, will go to show that after setting out the facts in para 1 of the order, copy Annexure P1, he referred to the notice issued to both the parties after the submission of the complaint (Calendra in para 2) and after hearing both the sides, noted their contention and then he held in the last but one para at internal page 4 of the copy of the order, Annexure P1, as under :

"After hearing the arguments of learned counsel of both the parties, and after perusing the written statement to the plaint and representation of the Pharmacy students and the teachers, I have come to the conclusion that peace has been disturbed in the Lord Shiva Pharmacy College which is evident from the representation of the students and the teachers and from the spot inspection. No party is in possession on the spot. For keeping the law and order situation and also keeping in view the future of the students, I restrain both the parties to make entry in the Trust and Kothi situated in Bombaywali Gali Sirsa till no decision is taken by this Court or civil Court, and appoint Shri Hoshiar Singh Sivach, Block Development and Panchayat Officer Sirsa as Receiver of Lord Shiva Pharmacy College to run the Trust smoothly. For the smooth running of the coaching in the college, the teachers, students and other employees of the college should come to the college along with their identity cards so that no bad elements may enter the college."

In the last para of the order the learned Sub Divisional Magistrate, Sirsa issued the following directions to the parties at internal page 5 of the order, copy Annexure P1 :

"Both the parties are directed to appear in the Court on 18.2.1997 to produce their evidence. JUDGMENT announced today dated 7.2.1997 in the open Court.

Sd/

Sub Divn. Magistrate,

Sirsa."

From the aforesaid order, it is evidently clear that the learned Sub Divisional Magistrate, Sirsa, respondent No. 2, found that no party was in possession of the disputed property on the spot. The learned Sub Divisional Magistrate came to the conclusion that the peace had been disturbed in the College of Pharmacy which was evident from the representation of the students and the teachers and from the spot inspection. The learned Sub Divisional Magistrate did not pass a separate order under Section 145(1) Cr.P.C. He proceeded to pass order under Section 146(1) Cr.P.C. by appointing the Block Development Officer as the Receiver of the College of Pharmacy to run the Trust smoothly and thereafter he directed the parties in the end to appear before him and produce their evidence on 18.2.1997.

There is no clear and categorical order passed by respondent No. 2 that he had acted under Section 145(1) Cr.P.C. in order of reference first and then he proceeded to take action under Section 146(1) Cr.P.C. by appointing a Receiver of the disputed property. Annexure P2, which is a photostat copy of interim order dated 7.2.1997 and which is styled as an order under Section 145 Cr.P.C. reads as under :

"Under Section 145 Cr.P.C.

State v. Dr. B.D. Goyal etc.

Today, this Kalandra was put up before me by SHO, City Sirsa. Notice was issued to both the parties. Both the parties along with their counsel are present. Arguments heard. Both the parties have no possession. Therefore, Sh. Hoshiar Singh Sivach BD&PO is appointed Receiver for the land. Detailed order is in Hindi. Both the parties are directed to come present and file their evidence in the Court on 18.2.1997.

Sd/

S.D.M., Sirsa.

7.2.1997."

Now, if this is the order passed under Section 145(1) Cr.P.C., then, it clearly shows that the learned Sub Divisional Magistrate, Sirsa did not record his satisfaction about the apprehension of breach of peace relating to the land or immovable property between the two parties before him and did not specifically pass an order under Section 145(1) Cr.P.C. and proceeded straight away to appoint Shri Hoshiar Singh Sivach, respondent No. 5, BD&PO as Receiver for the land. This order, copy Annexure P2, appears to be the first order passed by him because it refers to the detailed order in Hindi which is Annexure P1, the English translation of which is Annexure P1/T. It is also significant to note that the Calendra itself had been put up before the learned Sub Divisional Magistrate, Sirsa by the Station House Officer, City Sirsa on 7.2.1997 on which date he passed the order for issuance of a notice to both the sides and both the sides have also come present before him with their counsel and he heard their arguments and passed the short order, copy Annexure P2. A combined reading of the two orders Annexures P1 and P2 will make it abundantly clear that the learned Sub Divisional Magistrate did not pass specifically any order under Section 145(1) Cr.P.C. prior in time to the order passed under Section 146(1) Cr.P.C. The impugned orders, thus, do not satisfy the legal requirements of the provisions of Sections 145(1) and 146(1) Cr.P.C. and the law settled by the Division Bench of this Court in Nachhatar Singh''s case (supra).

Apart from it, it is relevant to note that in the order, copy Annexure P1, the learned Sub Divisional Magistrate, Sirsa, respondent No. 2 did not consider the material placed before him and did not notice the factual controversy relating to the disputed property existing between the first party Dr. B.D. Goyal, on the one hand, and the second party, Shri Desh Kamal, on the other hand. It will be relevant to mention that the facts relating to the property in question were highly disputed and there has been a series of litigation in the Civil Court between the two parties. It is also relevant to mention that even the learned Sub Divisional Magistrate, did not find any party before him to be in possession on spot of the disputed property. It is also relevant to note that respondent No. 5, the BD&PO, Receiver admitted about petitioner No. 2, Shri Desh Kamal being the Administrator of the College of Pharmacy run by the Trust. It is not the purpose of Section 145 Cr.P.C. to settle such complicated issues of facts which can appropriately and adequately be dealt with only by a Civil Court of competent jurisdiction. Civil Court is already seized of the matter as would appear from the reply filed by respondent No. 4, i.e. Dr. B.D. Goyal wherein the earlier decree passed by the Civil Court is under challenge. The rights of the parties, if any, can adequately and properly be considered and protected by the Civil Court dealing with the matter. So far as the challenge of the order, copy Annexure P3, passed by respondent No. 2, Sub Divisional Magistrate, Sirsa deciding the petition of petitioners for dropping the proceedings under Sections 145 and 146 Cr.P.C. in this case is concerned, the learned Sub Divisional Magistrate, Sirsa disposed of the petition by observing in the last para as under :

"I have heard the arguments of both the parties and have also gone through the documents of the file carefully. I have come to the conclusion after hearing the arguments of both the parties that there is great tension between both the parties, due to which there is danger of breach of peace in all the nearby area. There can be any serious crime at any time. Both the parties claim their right over this property, therefore, I order to continue in force may previous orders dated 7.2.1997 which were issued after hearing both parties under Section 145 and 146(1) Cr.P.C. because in this situation, it would be proper to keep peace so that there may not occur any kind of tension between to the parties. File be put up with summoning the respondents on 3.3.1997.

JUDGMENT announced.

Sd/

SDM, Sirsa."

Dated 28.2.1997

This order again is the reiteration of the earlier orders passed by Sub Divisional Magistrate, Sirsa, copies Annexures P1 and P2.

In view of the foregoing discussion, I am of the considered opinion that the learned Sub Divisional Magistrate, Sirsa committed error in law in initiating the proceedings under Section 146(1) Cr.P.C. and in making order under Section 146(1) Cr.P.C. without previously recording his reasons for his satisfaction about the existence of apprehension of breach of peace and recording an order under Section 145(1) Cr.P.C. The impugned orders, Annexures P1 and P2 are thus contrary to the well settled principles of law relating to the provisions of Section 145(1) & 146(1) Cr.P.C. The impugned order, Annexure P3, also suffers from the same infirmity in law.

The petition has, thus, considerable merit and is allowed and the impugned orders Annexure P1, P2 and P3 are set aside.