Mukhtiar Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

Aggrieved by the orders Annexures P.7 and P.8 passed by the SubDivisional Magistrate, Barnala, under Sections 145(1) and 146(1) of the Code of Criminal Procedure (in short, the Code) the petitioners are seeking their quashment.

The petitioners'' contention is that this High Court vide judgment dated November 20, 1959 (Annexure P1) set aside the consolidation scheme with regard to the allotment of 69 Bighas 15 Biswas of land of the proprietors/right holders of the village Panchayatrespondent No. 4. During the consolidation proceedings 69 Bighas 15 Biswas of land of the proprietors was kept reserved for village Panchayat for its income, without paying any compensation to the proprietors. Hence the consolidation scheme was challenged by the proprietors in CWP No. 892 of 1958, which was partly allowed vide Annexure P.1. After this judgment the Consolidation authorities were duty bound to redistribute the said 69 Bighas 15 Biswas of land amongst the proprietors of the village, inclusive of the petitioners. The matter was delayed. Ultimately the Consolidation Officer passed an order dated March 2, 1995 (Annexure P.2) under Section 21(2) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (in short, the Act) whereby he withdrew 116 kanals 5 marlas equivalent to 69 Bighas 15 Biswas of land from the Gram Panchayat and redistributed it amongst the proprietors of the village specifying their shares in the said joint Khewat. The proprietors inclusive of the petitioners were also put in possession of the said land. Gram Panchayat has not filed any appeal against the order of the Consolidation Officer. Instead the Gram Panchayat filed Civil Suit No. 239 on April 15, 1996, for permanent injunction. It also filed a petition under JUDGMENT 39 Rules 1 and 2 CPC for restraining the petitioners/proprietors from taking possession of the land in dispute. Vide order Annexure P.3 dated June 14, 1996, this petition was dismissed on the ground that the Civil Court had no jurisdiction to grant such a relief in view of the order passed by the Consolidation Officer.

The petitioners have also averred that during the pendency of the said civil suit the Gram Panchayat through its Sarpanch filed an application dated May 15, 1996 (Annexure P4) before the concerned Police Station, wherein it is specifically mentioned that the petitioners are cultivating the disputed land of the Gram Panchayat and a prayer was made that the possession of the land be got delivered to the Gram Panchayat. On the basis of the said application police initiated proceedings under Sections 107/151 Cr.P.C. and on May 26, 1996, police submitted Kalendra Annexure P.6 under Section 145 of the Code regarding the said land, whereupon initially the SubDivisional Magistrate passed order under Section 145(1) of the Code (Annexure) P.7) and after about a month passed order under Section 146(1) of the Code (Annexure P.8). The petitioner'' contention is that there is no dispute with regard to the possession between Gram Panchayat and these petitioners/proprietors. Therefore, the SDM had no jurisdiction to pass any order under Sections 145(1) and 146(1) of the Code. Further, there was no emergency or apprehension of any breach of public peace. On this count also the impugned orders are liable to be set aside.

Respondents 1 to 3 filed their joint reply, wherein they averred that the petitioners are not in possession of the disputed land; rather as per the entries made in the Jamabandi, the Gram Panchayat is owner in possession of the disputed land. The land was being continuously leased out by the Gram Panchayat through BDO. Since the petitioners wanted to take possession of the disputed land forcibly, the proceedings were rightly initiated firstly under Sections 107/151 Cr.P.C. and later on under Section 145 of the Code. There are more than 100 cosharers of the disputed land and unless the land is partitioned amongst them there is every likelihood of breach of peace.

Respondent No. 4 in its reply has also denied that the land in dispute is in possession of the petitioners/proprietors. According to respondent No. 4, in the consolidation scheme the land was reserved for common purposes. Since then the Gram Panchayat is continuously in possession of the disputed land. The Gram Panchayat is auctioning it every year. The land is in possession of its lessees. In the said writ petition filed by the proprietors of the village before the High Court the Gram Panchayat was not impleaded as a party, though it was a necessary party. When the Consolidation Officer passed an order under Section 21(1) of the Act, even then the Gram Panchayat was not impleaded and was not heard. The Gram Panchayat has already filed a civil suit for permanent injunction against the petitioners/proprietors. Though its petition filed under JUDGMENT 39 Rules 1 and 2 CPC is dismissed by the Civil Court, its civil suit is still pending. Since there was apprehension of breach of peace, proceedings under Section 145 Cr.P.C. were rightly initiated and the learned SDM has rightly passed an order under Section 146(1) Cr.P.C.

During arguments, the counsel appearing for respondent No. 4 admitted that the Gram Panchayat has already withdrawn its aforementioned civil suit.

The petitioners'' learned counsel valiantly argued that from the last para of the judgment passed by the High Court in CWP No. 892 of 1958, it is evident that the consolidation scheme was set aside with regard to the allotment of 69 Bighas 15 Biswas of land to the village Panchayat. Thereafter these proprietors of the village filed a petition under Section 21(2) of the Act, which was allowed by the Consolidation Officer vide Annexure P.2. This very land was redistributed amongst the proprietors and their shares were determined. Petitioners'' counsel also submits that thereafter possession of the disputed land was delivered to the petitioner and other proprietors of the village. The judgment in CWP No. 892 of 1958 has become final. The Gram Panchayat has not filed any appeal against the order of the Consolidation Officer (Annexure P.2). Hence this order has also become final. Thereafter the Gram Panchayat filed civil suit against the petitioners/proprietors, wherein relief of ad interim temporary injunction was not granted by the Civil Court as is evident from order Annexure P.3 and ultimately, as it is admitted by the counsel for respondent No. 4, the suit has already been withdrawn by the Gram Panchayat. He also drew my attention to the petition Annexure P.4 filed by Jagtar Singh, Sarpanch of Gram Panchayatrespondent No. 4, wherein it is mentioned that "some persons of the village are cultivating the land of the Gram Panchayat forcibly...". In the last line it is mentioned. " The Panchayat land be got delivered to the Panchayat."

Petitioner'' learned counsel strongly urged that from this line itself it is evident that the Gram Panchayat is not in possession of the disputed land. He supported this argument on the basis of the recital made in Kalendra Annexure P.6, wherein it is mentioned "This year the said land was not auctioned and the second party tried to possess the land in question." Thus, according to him the Gram Panchayat as well as police have admitted that the Gram Panchayat is no more in possession of the disputed land and petitioners/proprietor are in possession of the same.

The petitioners'' counsel also strongly assailed the orders Annexures P.7 and P.8 on the count that from these orders it is apparent that the real dispute before the SDM was that the land is not partitioned amongst the co owners/proprietors of the village. Hence there is a dispute. It is not a dispute with regard to the possession of the said land between the Gram Panchayat and the proprietors. As per these orders as well as Kalendra Annexure P.6 the dispute appears to be amongst the proprietors with regard to partition of the land, which is redistributed amongst them vide order Annexure P.2 of the Consolidation Officer. In that view of the matter also, according to the learned counsel, the SDM had no jurisdiction to pass any order under Section 145 or under Section 146(1) of the Code.

Counsel for respondent No. 4 Gram Panchayat submitted that the petitioners or other proprietors of the village cannot get the disputed land as per order of the High Court Annexure P.1 in view of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Validation Act, 1969 (in short, Validation Act). This Act is in force from July 4, 1969. Its Section 2 provides :

"2. Validation. Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, where in any scheme made at any time before the commencement of this Validation Act, land has been assigned or reserved for a common purpose as defined in clause (bb) Section 2 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, in accordance with executive instructions issued by the Government from time to time, such scheme shall be, and shall be deemed always to have been, valid and no such scheme shall be questioned merely on the ground that the scale for such assignment or reservation had not been laid down by rules framed under the said Act."

Learned counsel appearing for Gram Panchayatrespondent No. 4 submitted that in view of the above mentioned provision the proprietors cannot now take help of High Court''s order Annexure P.1, which was passed earlier than the enforcement of the aforesaid Validation Act. He also submits that the Gram Panchayat is assailing the order Annexure P.2 before the appropriate forum. Hence it cannot be said that this order has become final. He also submitted that the Gram Panchayat is still in possession of the disputed land. Continuously it is being auctioned by the Gram Panchayat and the land is in possession of its lessees. As Mukhtiar Singh petitioner lost the election of Sarpanch, he is forcibly trying to take possession of the Gram Panchayat. Therefore, there is a dispute about possession of the disputed land between the Gram Panchayat and these petitioners. Under these circumstances, the police initially initiated proceedings under Sections 107/151 Cr.P.C. and finally as there was emergency and apprehension of breach of peace the police submitted Kalendra Annexure P.6, whereupon the SDM passed an order under Section 145(1) and later on under Section 146(1) of the Code. Thus, he supported both the impugned orders.

Counsel appearing for respondents 1 to 3 also adopted the arguments advanced by counsel for respondent No. 4 and submitted that under the facts and circumstances of the case the SDM has rightly passed the impugned orders Annexures P.7 and P.8.

After hearing the rival contentions, in my considered view the SDM has fallen into an error in passing the order under Section 146(1) of the Code. After the Validation Act whether the judgment of the High Court Annexure P.1 has become non est is not a question which is required to be answered in these quashment proceedings. But after the enforcement of this Validation Act, the Consolidation Officer has passed an order Annexure P.2, which is not yet set aside by any authority. These petitioners/proprietors are claiming their title in the disputed land in view of the judgment Annexure P.1 and consequently the order of the Consolidation Officer Annexure P.2 whereby the disputed land is redistributed amongst the proprietors of the village.

A Magistrate can pass an order under Section 146 of the Code when he considers the case to be one of emergency, if he is of the opinion that none of the parties was in possession of the subject of dispute and thirdly if he was unable to decide which of the parties was in possession of the subject of dispute.

In this case, the proceedings under Section 145(1) of the Code are already initiated. The SDM has already passed an order under Section 145(1) (Annexure P.7). He has not recorded any finding as to which party is in possession of the disputed land or he is unable to decide as to which party is in possession of the disputed land. The basis of these proceedings is petition dated May 15, 1996. This petition was submitted by Sarpanch Jagtar Singh before the police wherein he has candidly admitted that some persons of the village are cultivating the land of the Gram Panchayat forcibly and in the last line he has made a prayer that the Panchayat land be got delivered to the Panchayat. From these two lines it is apparent that the Gram Panchayat is no more in possession of the disputed land, which is in possession of other persons. On the basis of this petition the police initiated proceedings under Sections 107/151 Cr.P.C. The police submitted report Annexure P.5. In this report it is specifically mentioned :

".... As per record of the Patwari, the land in question is recorded in the name of Gram Panchayat, Deepgarh, but in the red ink a note has been given in favour of individuals. The shares of the proprietors are recorded in the land in question".

Accordingly it was prayed that both the parties be bound down by giving bail and personal bond.

No party has produced any order which is passed on the basis of this Kalendra.

Thereafter within 10 days another Kalendra under Section 145 of the Code was submitted by the same Police Station before the SDM which is at Annexure P.6. In this Kalendra also it is mentioned that the disputed land measuring 14 acres comprised in Khewat No. 152 Khatoni Nos. 321, 323 and 328 is of Jumla Malkan and the said land is shown in the name of Gram Panchayat Deepgrah, but one note has been given in the red ink in the said Jamabandi as per which about 100 proprietors are shown owners of the said land. No specific Khasra number is shown to be ownership of any specific person; only shares of the proprietors are recorded and in this manner all the proprietors have a joint Khata regarding the said land. It is further mentioned that "this year the said land was not auctioned and the second party tried to possess the land in question, then Jagtar Singh, Sarpanch submitted an application before the police...." Further, is mentioned "ASI Sukhbir Singh visited the village and he tried to make understand to party No. 1 Gram Panchayat and to party No. 2 to the effect that land should be got partitioned from the revenue department, but the second party did not agree." It is also mentioned "the land in question is owned by so many persons. Therefore, the proceedings under Section 145 may be initiated till the said owners got the land in question partitioned from the revenue authorities and the specific numbers are allotted to the individual owners and both the parties be restrained from entering in the land in question."

In the order Annexure P.7 the SDM has mentioned that he is satisfied that there is a dispute between the respondents over the land. He is also satisfied that the dispute over the said land is likely to create a breach of peace as all the respondents claim possession over the same. In impugned order Annexure P.8 the SDM has expressed. "It appears to me that the matter is of very emergency nature and there is likelihood of breach of peace at any time between the above noted parties."

It is pertinent to mention that after receiving the complaint Annexure P.4 of Jagtar Singh, Sarpanch of Gram Panchayatrespondent No. 4, wherein the Sarpanch has specifically admitted that some persons of the village are cultivating the disputed land of Gram Panchayat and prayed that Panchayat land be got delivered to the Panchayat, whereupon proceedings under Sections 107/151 Cr.P.C. were initiated by the police. This Kalendra under Sections 107/151 of the Code is dated May 16, 1996. What transpired within 10 days, when immediately on May 26, 1996, the police submitted another Kalendra under Section 145 of the Code, is not clear from the record or from the replies submitted by the respondents. The respondents have not averred that despite proceedings being initiated under Sections 107/151 of the Code, the matter became so grave that an emergency arose and there was apprehension of breach of peace. No untoward action committed by any of the petitioners or any body else is mentioned in the reply submitted by the respondents or in the Kelendra filed under Section 145 of the Code. From this Kalendra Annexure P.6 it appears that the dispute is with regard to the distribution of the land amongst coowners/proprietors of the village. It does not show that there is a dispute with regard to the possession of the disputed land between the Gram Panchayat and these proprietors. If the Gram Panchayat would have been in possession of the disputed land, Sarpanch would not have submitted the petition Annexure P.4 praying that the panchayat land be got delivered to the Panchayat, nor the police would have mentioned in Kalendra Annexure P.6 that this year the said land was not auctioned by the Gram Panchayat. From this material on record it is apparent that the petitioner/proprietors of the village are in possession of the disputed land. When police has already initiated preventive measures under Sections 107/151 of the Code and thereafter no untoward action is mentioned in the Kalendra, then the SDM had no jurisdiction to initiate proceedings and to pass orders under Sections 145(1) and 146(1) of the Code. If really there is any apprehension of breach of peace, both parties can be bound down under the preventive proceedings which are already initiated.

Thus, in my considered view the SDM fell into a patent error in passing the impugned orders Annexures P.7 and P.8. Resultantly, the petition is allowed. Both the impugned orders Annexures P.7 and P.8 are hereby quashed.