Roshni Devi vs State of Haryana

S.C. Malte, J.

The petitioner takes exception to the order dated 29.7.1997 passed by the Executive Magistrate, by which he disposed of the proceedings under section 145 cr.P.C., by observing that the civil court was already seized of the matter and the civil court passed the order of maintaining of status quo of the possession of the disputed land. He has further observed that in the report submitted by the police, correct discription of the land in dispute has not been shown.

The counsel for the petitioner contends that despite the order passed by the civil court that the parties shall maintain status quo in respect of possession of the suit land, the Executive Magistrate is empowered to take cognizance under section 145 Cr.P.C., if necessary ingredients to attract that section have been spelt out. In support of that, he has relied on the ruling of the Supreme Court in Parkash Chand v. State, 1994(3) R.C.R. 217. Counsel for the respondents submitted that since the matter was already seized of by the civil court and interim order was passed on the basis of statements made by the counsel from both sides, there is no question of invoking the powers under section 145 Cr.P.C.

The counsel for the respondents has also placed before me a true copy of the order passed by the Civil Court. It is an admitted position that the same suit property is the subject matter of proceedings under section 145 Cr.P.C. In that case there hardly remain any question regarding the identity of the disputed property. The reasons given by the learned Executive Magistrate in that respect are not acceptable.

The other reason on which the Executive Magistrate declined to exercise the power under section 145 Cr.P.C. is the existence of an order of maintainenance of status quo in respect of possession of the land passed by the civil court.

In my opinion such order of maintaining status quo is a vague order. It leaves both the parties to guess which of the two can legitimately claim to be in possession of the suit land. Such order certainly gives rise to dispute between both the sides, because each side claims status quo in its favour. As such civil court should have prima facie adjudicated question of fact of possession, and should have passed a clear order as to the possession of which party was sought to be protected by interim order. It is unfortunate that civil court has adopted such a short cut method while disposing of the application for interim injunction. Moreover, I would say, the counsels in the civil court have also not properly realised that by getting such order of maintaining of status quo by them, they are giving rise to further complication. In the set of circumstance it appears that both the sides started claiming to be in possession of the property.

In these set of circumstances police have submitted a report that dispute was likely to cause breach of peace on the issue of possession. Learned Magistrate was supposed to examine that aspect; and should have passed an appropriate order. As such, the exercise which the civil court was supposed to perform, was required to be performed by the Magistrate while adjudicating questions or issues under section 145 Cr.P.C. It was still open to the parties to approach to the civil court and get a clarification of the order by clearly getting direction as to which of the two parties, according to the court, is said to be prima facie in possession of the suit land. The counsel has brought my attention to the case of Parkash Chand v. State (supra). In that case Their Lordships of Supreme court have observed that when dispute is not on the question of right to possession but on the question of fact of possession of the particular party, the Magistrate would be justified in taking cognizance under Section 145 Cr.P.C. if it transpired that there is possibility of breach of peace on the issue of possession over the property. In the set of circumstances petition is allowed. JUDGMENT dated 29.7.1997 passed by the Executive Magistrate is hereby set aside and the matter is sent back for disposal according to law in view of the observations made above.