Mela Ram vs Sadhu Ram and Others

J.P. Chaturvedi. J.

This is a revision against a judgment and order of the learned Sessions Judge, Saharanpur in Criminal Revision No. 98 of 1980, allowing the revision and ordering the S.D.M. Roorkee to direct the Station Officer concerned "to ensure that the tractor in question is taken out through the disputed land and for that purpose the walls raised on the disputed land be dismantled.

The facts giving rise to this revision are that on 7-11-1979 the police reported to the S.D.M. Roorkee that opposite party No. 2 was raising walls around the disputed land through which Sadhu Ram had a right of ingress and egress. The land in dispute was situate to the south of the house of opposite parties Shadu Ram, Kali Ram and Banarsi Dass. It is alleged that Mela Ram surrounded this land by walls on all the four sides and thereby obstructed the passage for the tractor of the opposite parties. A preliminary order under the provisions of Section 145 Code of Criminal Procedure was passed by the Magistrate on 15-11-1979. Then Sadhu Ram moved an application in the Court of the Learned S.D.M. Roorkee, praying that the walls raised by Mela Ram be dismantled so that his tractor could pass through the land. The learned Magistrate dismissed the application Thereupon Sadhu Ram filed a revision in the Court of Sessions. The learned Sessions Judge passed the impugned order. Aggrieved against the said order Mela Ram has come in revision before this Court.

The dispute between the parties relates to a piece of land which is situated to the south of the house belonging to the opposite parties Sadhu Ram, Kali Ram and Banarsi Dass. As already stated, Sadhu Ram and Ors. alleged that they used the land as passage for their tractor.

Learned Counsel for the applicant Mela Ram has contended that the present order of the learned Sessions Judge was without Jurisdiction, inasmuch as it has no sanction of the provisions of Section 145 Code of Criminal Procedure. In this connection, the provisions of the various Sub-sections of Section 145 of the Code of Criminal Procedure may be cursorily examined. Sub-section (1) empowers an Executive Magistrate to make an order in writing, stating the grounds of his satisfaction that a dispute likely to cause a breach of the peace exists, concerning any land or water or the boundaries thereof, requiring the parties concerned to attend his Court in person or by pleader on a specified date and time, and put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.

Sub-section (2) states that the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

Sub-section (3) lays down that the preliminary order, as it is popularly called under Sub-section (1), shall be served in the manner provided for the service of a summons.

Sub-section (4) provides for the procedure at the time of hearing of the dispute between the parties and entitles the court to decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute.

Sub-section (5) lays down that a party required to attend, or any other person interested, might show to the Court that no dispute involving breach of the peace existed. If the Magistrate comes to the conclusion that no such dispute exists then he may cancel his order.

Sub-section (6) further empowers the Magistrate to declare, which of the parties is entitled to possession and restrain the other party from evicting him or disturbing his possession until the matter is decided by a competent Court.

Sub-section (7) empowers the Magistrate to permit substitution while Sub-section (8) empowers him to pass an interim order relating to crop or other produce.

Sub-section (9) empowers the Magistrate to summon any witness whose testimony may be necessary for the purposes of any enquiry.

Sub-section (10) further lays down that nothing done under the provisions of Section 145 Code of Criminal Procedure shall be deemed to be in derogation of the powers of the Magistrate to proceed u/s 107 Code of Criminal Procedure.

Sub-section (8) is the only provision under which an order can be passed by the Magistrate in respect of the property in the course of the proceedings before him. It will, therefore, be proper to reproduce the Sub-section:

If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

The scope of Sub-section (8) is very limited. It empowers the Magistrate, if he is of the opinion that any crop or other produce is subject to speedy or natural decay, to make an order for its proper custody. The impugned order, by no stretch of imagination, is covered by this Sub-section. The order is neither in respect of any crop nor produce of the subject-matter in dispute.

Section 145 Code of Criminal Procedure is a complete and self-contained Code. It makes elaborate provisions as to the powers of the Court and it also prescribes the procedure which has to be followed. A careful examination of the provisions of the various Sub-sections of Section 145 Code of Criminal Procedure makes it abundantly clear that an order like the one the learned Sessions Judge has made is not covered by it. In the circumstances, the order has to be set aside.

The revision is, therefore, allowed and the order of the learned Sessions Judge, Saharanpur dated 22-5-1980 is set aside. The trial Court is, however, directed to dispose of the proceedings u/s 145 Code of Criminal Procedure expeditiously.