Rajesh Kumar Agrawal vs District Magistrate and Others

R.K. Dash, J.—Rajesh Kumar Agarwal, Petitioner herein not being a party to Case No. 1 of 2000 pending in the Court of City Magistrate, Agra, has filed the present petition u/s 482, Cr. P.C. challenging the preliminary order as well as the order of attachment under Sections 145 and 146 of the Code of Criminal Procedure (for short "the Code"). Respondent Nos. 3 to 5 are the first parties and Dinesh Kumar Agarwal and Smt. Rajni Agarwal, wife of the Petitioner are the second parties in the aforesaid case. There being likelihood of breach of the peace regarding possession of the land pertaining to plot/holding No. 19/10-A/1A situated at Khataina Road under the jurisdiction of Lohamandi P.S., the City Magistrate, Agra, on the basis of the police report initiated the aforesaid proceeding and simultaneously, attached the land.

Petitioner''s case, in brief, is that the land in question originally belonged to Saroj Kumar Jain, resident of 272 of Civil Lines, Jhansi. On his death, it devolved upon his sons, daughters and widow, who transferred the same by three sale deeds on 30th August, 1999, in favour of Dinesh Kumar Agarwal, Smt. Meenakshi and Smt. Rajni Agarwal. One Bholanath was occupying the said land as a tenant and after his death, his heirs surrendered the tenancy right in favour of the purchasers on 11.11.1999. Respondent Nos. 3 to 5 being members of R.S.S. tried to grab the land and moved an application before the City Magistrate, Agra, for initiating proceeding u/s 145 of the Code who in turn called for a report from the police and on receipt of the report, passed the preliminary order and simultaneously, attached the land in question.

Further case of the Petitioner is that he is the husband of Smt. Rajni Agarwal and other two purchasers are his brother and sister-in-law and he owns a shop over the disputed land where he has been running his business in iron rods. The impugned preliminary order as well as order of attachment, asserted the Petitioners, suffer from mala fide, in as much as, the City Magistrate being politically influenced and without applying mind to the law involved, passed the said orders. He has further asserted that proceeding was initiated concerning plot/holding No. 19/10A/1A as would appear from the impugned orders, but in fact attachment was made in respect of the land pertaining to plot/holding No. 19/10A. All the three purchasers as well as the Petitioner, it is urged, filed a suit for injunction being O.S. No. 28 of 2000 in respect of plot/holding No. 19/10A against opposite party Nos. 3 to 5 and the learned Additional Civil Judge (S.D.), Agra, by his order dated 7.1.2000 appointed Advocate Commissioner for inspection of the disputed land. When the civil court had taken cognizance of the dispute, on the very next day, the local police at the instance of the Respondent Nos. 3 to 5 initiated the present proceeding and consequently, the impugned orders were passed.

Respondent Nos. 3 to 5 filed counter-affidavit contending inter alia that plot No. 19/10A was a big plot measuring 12 biswas and the owner of the said plot was one Rahmat Bux, who transferred the same by registered deed of sale on 30th July, 1947, in favour of one Riazuddin, resident of Loha Mandi, Agra. The said transferee sold 11 biswas by way of sale to one Bal Kishan, resident of Pulchhingamoti Loha Mandi on 8th October, 1947. After purchase, Bal Kishan entered into possession and got the same mutated in his name in the Municipal records as well as in the Khewat. In the Municipal records, it stood recorded as plot/holding No. 19/10A/1A. While in possession, he transferred 700 square yards from the western side in favour of Devendra Kumar and Jitendra Kumar and remaining in favour of Vijay Kumar, Manoj Kumar and Sanjay Kumar, Respondent Nos. 3 to 5. Vijay Kumar and Manoj Kumar, the transferees were put in possession of their respective land, but so far the land of Sanjay Kumar is concerned, he could not get possession since it was in occupation of one Bholanath as a tenant from the time of Bal Kishan, the transferor. Dinesh Kumar, Smt. Minakshi and Smt. Rajni having obtained some sale deeds in August, 1999, hatched a conspiracy to forcibly dispossess them from their land which they acquired by purchase for which they made complaint to D.I.G. of Police, Agra and other authorities including the City Magistrate, Agra. Apprehending breach of the peace concerning the land in dispute, City Magistrate, Agra, initiated the proceeding u/s 145 of the Code and attached the land. They have specifically pleaded that the dispute relates to plot/holding No. 19/10A/1A and not 19/10A.

Sri V. P. Srivastava, learned Counsel appearing for the Petitioner strenuously urged that though the preliminary order and order of attachment were passed in respect of plot/holding No. 19/10A/1A, in fact it was plot/holding No. 19/10A which Dinesh Kumar Agarwal, Smt. Meenakshi and Smt. Rajni Agarwal, wife of the Petitioner had acquired by virtue of purchase was attached. There being no cogent and convincing material as to the identity of the land, in other words, whether the disputed land relates to plot/holding No. 19/10A/1A or 19/10A, the learned Magistrate should have been slow to initiate the proceeding. Sri Srivastava went on to argue that when the suit for injunction at the instance of Dinesh Kumar Agarwal and others was pending for adjudication and application for temporary injunction had been filed, it was wrong for the Magistrate to initiate a parallel proceeding. Lastly, he contended that since, in the meantime the civil court upon hearing the parties restrained the Respondent Nos. 3 to 5 interfering with the possession of the Plaintiffs, the present proceeding u/s 145 of the Code should not be allowed to continue ; the reason being that the question as to who is in possession of the land in dispute can only be gone into and decided on the basis of the evidence to be laid during hearing by the civil court.

Sri Satish Trivedi, senior advocate appearing for Respondents Nos. 3 to 5 would contend that the preliminary order and order of attachment passed by the City Magistrate being based on the report of the police and proper exercise of jurisdiction conferred by law cannot be interfered with by this Court in exercise of inherent power. With regard to question of identity of the disputed land, he contended that in both the orders, the property has been well described by plot/holding number with boundaries and there being no acceptable evidence that the land pertaining to plot/holding No. 19/10A was in fact attached, the submission of Sri Srivastava, learned Counsel appearing for the Petitioner does not merit consideration.

A perusal of both the orders reveals that the dispute relates to plot/holding No. 19/10A/1A and for clarity, it has been described by boundaries. According to Respondent Nos. 3 to 5, it is this land which they acquired by purchase and were put in possession and their possession was interfered with by Dinesh Kumar Agarwal and others. On the other hand, Petitioner''s case is that his wife, brother and sister-in-law purchased plot/holding No. 19/10A and over the said plot, he owns a shop and runs business in iron rods. It is also his case that in respect of the aforesaid plot, civil suit has been filed and it is pending for decision. From the materials on record and the submission of the learned Counsel appearing for the respective parties, it is evident that both parties claimed their right in respect of independent plot/holding and in that view of the matter, it is for the Magistrate to decide the dispute on the basis of the evidence to be adduced by the parties as to whether in fact it was the land of Respondent Nos. 3 to 5 or Petitioner''s wife, brother and sister-in-law was attached.

As regards the maintainability of the proceeding u/s 145 of the Code on the ground that the civil court has taken cognizance of the dispute, it may be stated that it is the Petitioner''s specific case that the suit has been filed in respect of plot/holding No. 19/10A which his wife and two others claimed to have purchased from the previous owner. The proceeding u/s 145 of the Code, as stated earlier has been initiated concerning plot No. 19/10A/1A. In both the proceedings, the disputed land being different, in my opinion, there is no legal bar or impediment for the City Magistrate to hear and determine the question of possession in respect of the land mentioned in the preliminary order.

In view of discussion made above, I would hold that the proceeding in Case No. 1 of 2000 u/s 145 of the Code should continue and be decided in accordance with law. This being the ultimate conclusion, the question arises whether attachment shall continue in view of the order passed by the Court while issuing notice to the Respondents. For better appreciation, the said order is extracted hereunder:

Heard Shri R. K. Sharma, learned Counsel for the Petitioner and learned A.G.A.

Issue notice to opposite party Nos. 3, 4 and 5 to file counter-affidavit within a month.

List thereafter.

In the meantime, the operation of the order dated 8.1.2000, passed by the City Magistrate, Agra, u/s 146(1), Cr. P.C. in Case No. 1 of 2000, Sanjay Kumar Jain v. Dinesh Kumar Agarwal and others, shall remain stayed for three months. The attached property of the Petitioner shall be released in his favour.

To repeat with, the preliminary order as well as order of attachment were passed in respect of Plot No. 19/10A/1A, more specifically described by boundaries. Petitioner does not claim to have any right over the said land. Whether the land in question at the spot pertains to plot/holding No. 19/10A/1A or 19/10A is to be determined by the Magistrate on assessment of the evidence to be produced before him. However, in the meanwhile in view of the aforesaid order the attached property was released in favour of the Petitioner and he was put in possession. Not only that, influenced by the said order, the learned Civil Judge, Senior Division while disposing of the application for temporary injunction directed Respondent Nos. 3 to 5 not to interfere with Plaintiff''s possession. In that view of the matter, the aforesaid order of the Court if allowed to remain will amount to prejudging the issue. I am, therefore, of the considered opinion that the same should be recalled and consequently, the order of attachment should be allowed to continue. It is, accordingly, so ordered. The police of Lohamandi P.S., district Agra is directed to remove the Petitioner from the land over which he was put in possession pursuant to this Court''s order referred to above and keep the same under attachment till disposal of the proceeding by the City Magistrate. The interim order of injunction passed by the Civil Judge, Senior Division shall not be treated to have been passed in respect of the land in question which has been described by boundaries in the preliminary order.

In the result, criminal misc. application fails and the same is dismissed.