AI Structured Summary
Not yet generated for this judgment
Judgment
S. K. Phaujdar, J.—The present application under Section 482, Cr. P.C. was filed on 22798 for quashing the proceedings initiated at the instance of the opposite party under Section 145, Cr. P.C. now pending in the Court of Sub
Divisional Magistrate, Nainilal, as also for quashing an order under Section 146(1) Cr. P.C. directing attachment of the property in question and dispossession the present applicants from the premises. There was a further prayer that the proceedings in question in Case No. 11/24 of 1998 be stayed during the pendency of the present proceedings.
When the matter came upas a fresh one on 23798 appearance was made for the opposite parties by Sri R.K. Sinha. The learned Counsel for the applicants S/Sri Dinesh Dwivedi and S.D. Kautilya and Sri R.K. Sinha, learned Counsel for the opposite parties, were heard and the matter was directed to be listed on 18898. There had been an interim order, the order of attachment u/S. 146, Cr. PC. was stayed.
Subsequently, on 4898 another petition was moved with a prayer for calling for the records of Criminal Revision No. 93 of 1998 and the aforesaid Criminal Case No. 11./24 of 1998 and to quash the judgment of the Sessions Judge, Neonatal, whereby the above mentioned revision application filed by the present applicant was dismissed. Further prayer was made to quash the 145, Cr. P.C., proceedings itself. Copy of this application was served on Sri Sinha and the matter was directed to be put up on 6898.
On this dated counteraffidavit was filed not only against the original application under Section 482, Cr. P.C. but also against the petition dated 4898 a prayer for vacation of the stay order was also made. The applicants came up with a prayer for modification of the stay order dated 23798 requiring stay of the proceedings before the Court below and for a direction not to release the disputed property in favour of the opposite parties. This prayer was also made with a counteraffidavit and the learned Counsels were heard.
The impugned proceedings under Section 145, Cr. P.C. were initiated on the application of the present opposite party and the complainants asserted before the court below that they had purchased about 4000 square yards of land in the wellknown Clifton Oaks Estate, Ayarpatta, Nainital, for valuable consideration, from its owner through a registered saledeed.
The present applicants (shown as opposite parlies in the Court below) had entered into agreement for purchase of 50 per cent of the said land on a consideration of nine and half lacs. The transaction did not mature for failure of payment on consideration. The present applicants thereafter moved the Delhi High Court for making a reference of the dispute to an Arbitrator. The ;petition was contested by the complainant. During the pendency of the proceedings before the Delhi High Court a prayer was made under Section 41 of Arbitration Act for a restraint order against the complainant from demolishing or dismantling any existing structure, from raising any construction of cottages and from entering into any agreement for the disposal of any construction or any nonconstructive area by any means of alienating. There had been an interim order by the Delhi High Court restraining the complaints from entering into any agreement for disposal of the cottages or any construction on the suit property. This interim order was passed in 1994 and the matter is still subjudice before the Delhi High Court.
The complainants claim that they continued to carry out construction on the property and had let out two cottages on temporary lease to a certain company. Knowing that the cottages have been completed, the present applicants moved the Delhi High Court and sought an injunction that the complainants should not let out or part with the possession of the property in favour of any other person.
It was further alleged that on 4698 the present applicants Neelem Singh accompanied by her husband Ashok Singh, with some local muscleman, trespassed into the said property, assaulted the employees of the complainants and tried to occupy a portion of the cottages, after intimidating the occupants therein. An F.I.R. was lodged and a prayer was made for taking up a proceeding under Sec. 145, Cr.P.C. to resolve the dispute regarding possession as there had been an apprehension of breach of peace over the matter.
Upon this application the SubDivisional Magistrate, Neonatal, drew up the instant proceedings in question and issued notice on 17698 asking the parties
to appear before him on 22698 to file their written statements. By a subsequent order dated 16798 the SubDivisional Magistrate, Neonatal, had issued the attachment order under Section 146 (1), Cr. P.C. which was stayed by an interim order of this Court dated 23798.
Against the order of the S.D.M. Nainital, taking up the proceedings under Section 145, Cr. P.C, a revision application was preferred before the Sessions Judge, Nainital, in Criminal Revisional No. 93 of 1998 by the present applicants. It was urged that the preliminary order was bad in law as the property was a joint one and the criminal Court could not have exercised jurisdiction over it. It was further urged that an injunction order from a civil Court in operation and as such the criminal Court could not have recorded any attachment order nor could there be any proceedings under Section 145, Cr. PC. for determination of possession of either of the parties. Case laws were cited before the learned Sessions Judge and after a discussion of the points raised before him it was held that a preliminary order under Section 145, Cr. PC. was not open to revision and a subsequent institution of a civil suit and a statutesquo order therein would not oust the jurisdiction of the Magistrate to continue with the proceedings.
In their application before this Court the present applicants urged that in terms of the agreement dated 9993 the parties were to develop the suit property and were to invest funds in equal snares and there had been a payment of rupees six lacs by the present applicants to the present opposite parties. It was stated in the instant application that the present opposite parties have made unauthorized " construction and asked the applicants to contribute funds for such construction which the applicants resisted. It was further stated that the present opposite parties were dismantling the existing cottages and that too was objected to by the present applicants. Only thereafter the prayer for appointment of an arbitrator was made before the Delhi High Court and the language of interim order reads as follows;
"Defendant i.e. Appear Real Estates Pvt. Ltd. are restrained from entering into any agreement or agreements for disposal of the cottages or doing any construction on the said
land."
It is the further case of the present applicants that the opposite parties had also instituted a civil suit against the applicants in Nainital on false allegations and had simultaneously made the present application for action under Section 145, Cr. P.C. It was stated that in Civil Suit No. 75 of 1998, after hearing the parties, the civil Court had directed on 25698 that the parties are to maintain status quo during the pendency of the civil suit.
In their several affidavits the present opposite parties indicated that there was concealment of real facts, by the present applicants and there had been an attempt to misrepresent the facts before the High Court by the present applicants. The applicants were never in possession of any part of the property till 4698. There had been no agreement for joint development of property in question. The orders of the S.D.M, Nainital, were perfectly legal and there was no bar for the criminal Court to initiate a proceeding under Section 145, Cr. P.C. as a civil Court had issued a direction of maintenance of status quo only and that too on a date subsequent to the initiation of the proceedings under Section 145, Cr. P.C. There had been no determination of possession by the Civil Court by the more status quo order.
The learned Counsel for the opposite party No. 2 took me through several decisions which, they thought were relevant to the present issue. In the case as reported in 1995 (32) ACC 336anHon''blc Judge of this High Court had held that when a civil suit in respect of the property is pending and there is an order for maintaining status quo but no clear cut prima facie findings of the civil Court was there about possession of the disputed plot, the Magistrate had every jurisdiction to take up a proceeding under Section 145, Cr. P.C. and in this respect the Hon''ble Judge has relied on a decision of the Supreme Court as reported in AIR 1994 SC 1436, wherein its was held (as quoted by Hon''ble Single Judge) that where the dispute is on the question of possession the Magistrate is empowered to take cognizance under Section 145, Cr. P.C. Reliance was also
placed on another decision of the Hon''ble Single Judge of the Allahabad High Court as reported in 1997 ACC (Criminal) 109 His lordship had explained in this case that there had been no doubt an order of the status quo but both the parties could claim that his possession was directed to be maintained, Thus, to maintain law and order and to prevent parties from taking law in their own hands which might created breach of peace, the Magistrate had every jurisdiction lo initialed a proceeding under Section 145, Cr. P.C. In another decision the Allahabad High Court held (ACC 1994 (21) 172) that the Magistrate had an independent jurisdiction to proceed under Section 145, Cr. P.C. irrespective of a finding of civil or revenue Court although such findings would be evidence in the matter.
Reliance was also placed on a decision of the Supreme Court as reported in A.I.R. 1980 Supreme Court 242. In this case, however, the Court had simply ruled that mere attachment made under Section 146, Cr. P.C. would not dives the Magistrate lo decide the question of possession. Another decision of the Supreme Court as reported in AIR 1994 Supreme Court 1436 was relied on wherein the apex Court had ruled that the proceedings under Section 145,Cr. P.C. need no I necessarily be dropped on the ground that proceedings under S. 107, Cr. P.C. were dropped nor on the ground of pendency of a civil suit for injunction when the suit was not based on title but raised questions only of dispossession of acoowner by another.
It is necessary to refer to the provisions of section 145, Cr. P.C. Il comes in Chapter X covering maintenance of public order and tranquility and in pan D in here of, the disputes as lo immovable properly are covered. Section 145, Cr. P.C. comes in this pan D. Il says that whenever an Executive Magistrate is satisfied from a report of a police officer or from other information that a dispute likely to cause a breach of the peace exists concerning any land or walker or the boundaries there of, within his local jurisdiction, he shall make an order in wiling, slaking the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified dale and lime, and to pull in written statements of their respective claims as respect the fact of actual possession of the subject of dispute. Further provisions under this section require the Magistrate to decide whether any and which of the parties was, at the date of the preliminary order in possession of the subject of dispute and in taking such a decision he is not required to refer to the merits of the claims of any of the parties to a right to possess the subject of the dispute. The Magistrate is empowered to declare any one of the party to be in possession if it appears to him that such party had been forcibly and wrongfully dispossessed within two months next before the date on which the information was received by the Magistrate or after that date and before the date of his preliminary order. Thus Section 145, Cr. EC. does not only give a power to be exercised but casts a responsibility on him, if he is satisfied about an apprehended breach of peace over possession of the land. The word used is "shall". Moreover, the Magistrate is not required to look to the right of any party to possess. He was simply to look to the actual physical possession and that too on the date of the preliminary order. There is, however, a relaxation that if any party had been dispossessed within two months before such preliminary order his actual possession could be declared as if it was on the date of the preliminary order. The Magistrate is in no way required to look to the title or even to the right of a particular party to possess as the proceeding was for maintaining law and order and to prevent breach of peace and was in that sense a measure to maintain the possession, even if unlawful, till the rights of the parties are determination by a competent civil Court.
Section 146, Cr. P.C. empowers the Magistrate, after making the preliminary order u/S. 146(1) Cr. P.C. to attach the subjectmatter of dispute if he considered the case to be one of emergency and such attachment was to continue until the competent Court had determined the rights of the parties on the question of possession. Once a land is attached and no receiver is appointed by the Civil Court the Magistrate may appoint a receiver under the control of the Magistrate to look after the property in question.
The main points on which the proceedings have been sought to be assailed are that the present applicants are coowners of the property. This in fact is a question of right to possess and will have a bearing only as some piece of evidence towards actual physical possession and may not, therefore, bar a proceeding under Section 145, Cr. P.C. unless there is declaration of actual joint possession. To be joint owners is one thing and to be in joint possession is another. The other point on which the proceeding is said to be bad is that there had been an order by a civil Court. The civil Court was approached on the same day when the SubDivisional Magistrate, Nainital, was approached and the Magistrate''s order is prior in a point of time so far the preliminary order under Section 145, Cr. P.C. is concerned. Moreover, the civil Court''s order spoke of status quo only and it did not indicate as to who was in actual possession and who was to be restraining from disturbing the possession of the other. There enters the Magistrate to keep peace as the parties are really disputing about actual physical possession. There being no direction from the civil Court about actual physical possession, the order of the civil Court would not stand on the way of taking up a proceeding under Section 145, Cr. PC. when the Magistrate was satisfied about existence of apprehension of a breach of the peace.
Seen from this line it cannot be stated that the Magistrate lacked initial jurisdiction to draw up the proceedings under Section 145, Cr. PC. or even to continue with the proceedings. So far the attachment order is concerned the order dated 23798, in my view, requires to be modified as certain observations were made therein. In this connection the learned Counsel for the applicants relied on certain case laws. In the decision reported in 1998 (36) A.C.C. 699, a proceeding under Section 145, Cr. P.C. was quashed as an earlier civil soil for possession was pending. The situation is different in the case at our hands as the order of the civil Court was admittedly recorded after the initiation of 145, Cr. P.C. proceedings. Reliance was also placed on a decision of the Punjab and Haryana High Court as reported in 1992 Criminal Law Journal 3422 in which it was held that when status quo order was passed in a suit relating to possession between the parties pending in the civil Court an order of attachment under Section 146, Cr. P.C. would not be passed as it would amount to encroachment upon jurisdiction of the civil Court. The same High Court had earlier also recorded this view in the case of Ram Kishan Dass as reported in 1998 Criminal Law Journal 291. Here also the civil suit was pending and the Court had recorded an order for maintenance of .status quo. It was held that the order of attachment of the land and appointing a receiver under Section 146t Cr. P.C. was not justified.
In the case at our hands the civil suit was filed by the present opposite party in Suit No. 75 of 1998 in which the parties were the same as are before this Court. The injunction order was made for certain different relief that the defendants be directed not to alienate any portion of the suit properly during the pendency of the suit nor should they take forcible possession nor would bring a change in the suit property. An order was passed by the Civil Judge, (Senior Division) Nainital, on 25698 that both the parties would maintain status quo on the suit property as per commission report and would not make over possession to a third party. The commission report spoken of in the order was obtained on application of the plain off. It was accepted before the civil Court that the defendant No. 1 had taken possession on 4698. The commission report suggested that possession was there with both the parties and only evidence would indicate as to who was in possession of which portion and as such the status quo order was directed. This was certainly a direction for maintaining status quo as regards possession on 25698 in view of this and in view of the judgment relied upon by the applicants as also in view of comments recorded by me on 23798 the attachment order dated 16 798 cannot be held to be legal and must be quashed.
In the result the application stands disposed of with a direction that proceedings under Section 145, Cr. P.C. before the Court shall go on and shall be concluded at the earliest. It is further directed that attachment order recorded by the Magistrate on 16798 stands quashed and the parties shall maintain status quo as on 25698 till a decision is arrived at by the Magistrate under Section 145 (6), Cr. P.C. Application disposed of.