Shitla Prasad and Others vs Additional Sessions Judge and Others

C.A. Rahim, J.—This writ petition has been filed fat quashing the judgment and order dated 6-8-1993 passed by the Additional Sessions Judge, Gyanpur, Varanasi dismissing the revision preferred before him and also for quashing the order dated 15 3-1993 passed by the Additional Sub Divisional Magistrate, Gyanpur, Varanasi, attaching the property in dispute u/s 146(1) Code of Criminal Procedure and to give it in possession to a third person after attachment.

Petitioners'' case is that they purchased the disputed property on 7-8-1969 from Ram Ajug son of Ram Dawan and got delivery of possession. Their names were mutated in the revenue records u/s 34 of the Land Reforms Act. Respondents No. 3 to 5 contested but the objection raised by them was rejected on 26-5-1973 in case Nos. 22/72, 23/72 and 24/72 passed by the Sub Divisional Officer, Gyanpur, Varanasi (filed as Annexure 1 of the rejoinder affidavit). Respondents No. 3 to 5 claimed that the disputed plots were purchased by them by registered deed of sale dated 6-6-1969 from Smt. Lakbpati widow of Sheo Achat Pandey but their names were not mutated in the revenue records.

In 1982 Consolidation proceeding was started and the disputed plots were allotted in the chak of the Petitioners. Respondents No. 3 to 5 filed on objection u/s 9-A of the Consolidation of Holdings Act and the same is pending for adjudication.

It is case of the Petitioners that delivery of possession of the chak land, including the disputed plots, were given to them after actual measurement and demarcation of the plots as per the provisions of Section 28 of the said Act in 1983 and since then they are in possession. It has been stated that at the instance of Respondents No. 3 to 5 proceeding u/s 145(1) Code of Criminal Procedure was started and an order u/s 146(1) Code of Criminal Procedure was also made by the Sub-Divisional Magistrate on the alleged apprehension of breach of the peace, though it was admitted by the Respondents No. 3 to 5 in that proceeding the lands in dispute are awaiting for adjudication in connection with the objection raised by them u/s 9-A of the Consolidation of Holdings Act (paragraph 7 of the counter affidavit).

By an order of the Magistrate dated 21-12-1983, the proceeding was dropped but in revision the Additional Sessions Judge set aside the said order by the judgment and order dated 26-9-1988 with a direction to hear the petition of the revisionists for modulation of the preliminary order and also to consider whether there was any emergency for further adjudication u/s 146(1) Code of Criminal Procedure. Thereupon the learned Magistrate passed an order on 15-3-1993 u/s 146(1) Code of Criminal Procedure and attached the property and passed an order for appointing a receiver. Being aggrieved by the said order the Petitioners filed a revision before the learned Sessions Judge, Varanasi, and the same was ultimately heard by the Additional Sessions Judge. Gyanpur, Varanasi, who dismissed the revision by an order dated 6-8-1993 on the ground that the impugned order was inter-locatory order and hence no revision will lie.

Learned Counsel for the Petitioners has submitted that both the courts did not consider that the Petitioners were in possession of the disputed property for long and after the consolidation proceeding Chakbandi was made and delivery of possession after demarcation of the plots were once again delivered to them under the law. It has also been alleged that there was no emergency for attaching the property u/s 146(1) Code of Criminal Procedure. It has also been stated ''that the direction of the learned Sessions Judge by an order dated 26-9-1988 was not complied with by the learned Sub-Divisional Magistrate.

Learned Counsel for Respondents No. 3 to 5 has submitted that there was an emergency and the said fact was noted by the learned Magistrate while attaching the property u/s 146(1) Code of Criminal Procedure by order dated 15-3-1993. It has also been submitted that the order passed u/s 146(1) Code of Criminal Procedure Is inter-locatory order and the learned Additional Sessions Judge was right in holding that no revision will lie by the judgment dated 6-8-1993.

For the question whether the order passed u/s 146(1) Code of Criminal Procedure is inter-locatory the learned Counsel for the Petitioner has referred a decision Lallan Prasad v. State of U.P.(XXVIII) 1991 ACC 139, wherein it has been held that "the powers of the Sessions Judge or any revisional court are not limited by the arguments or otherwise of the Petitioner or the other party. Once the petition is entertained it becomes the duty of the Sessions Judge to look into the entire case and come to a proper conclusion. Once a revision has been admitted, even if the Petitioner did. not appear before the Sessions Judge, it could not have been so silly decided."

Now the question that arises is whether the direction of the learned Sessions Judge passed by him on 26-9-1988 was complied with and a proper order required u/s 146(1) Code of Criminal Procedure was passed by the learned sub-Divisional Magistrate. The proceeding u/s 143 Code of Criminal Procedure is continuing for long end by order dated 21-12-1983 toe Sub-Divisional Magistrate, Gyanpur dropped the proceeding. On revision the learned Additional Sessions Judge, set aside the said order by his order dated 26-9-1988 with a direction to hear the petition of the revisionists for modification of the preliminary order and the question of attachment. There was also a direction to see if there was an emergency for passing the order of attachment u/s 146(1) Code of Criminal Procedure. The matter thereafter went to the Sub-Divisional Magistrate, Gyanpur, once again and the impugned order dated 15-3-1993 was passed which runs as follows:

Heard learned Advocates of both the sides and perused the record. There is a conflict in between the parties over the deputed land. Accordingly amended preliminary order cum attachment order u/s 146(1) Code of Criminal Procedure has been passed. Accordingly order be issued that the disputed land be attached and be made over to a third party who will abide by both the parties.

(English translation of the order passed in Hindi)

Learned Counsel for the Respondents has referred Annexures IX and X of the counter affidavit and submitted that the learned Magistrate passed an amended order u/s 145 Code of Criminal Procedure and 146(1) Code of Criminal Procedure. His contention ii that It has been stated in annexures IX and X that the learned Magistrate was satisfied that there was apprehension of breach of the peace, hence it cannot be said that there was no reason to pass such an order and that the order of the learned Sessions Judge dated 26-9-1988 was not complied with. The impugned order was annexed as Annexure IV of the affidavit by the Petitioners. A supplementary rejoinder affidavit was filed wherein a certified copy of the order dated 15-3-1993 was also annexed After going through annexure IV of the Petitioners affidavit and Annexures IX and X of the counter affidavit it appears to me that Annexure IV is the order passed by the Magistrate on the order-sheet and the said order was issued to the Respondents in the form of a notice and the same has been enclosed as Annexures IX and X. The said notice Annexures IX and X of the counter affidavit) is nothing but the translation copy of form No. 25 and 26 of the IInd Schedule of the Code of Criminal Procedure. In that notice (Annexures IX and X of the counter affidavit) it was mentioned that the learned Magistrate was satisfied that there was apprehension of breach of the peace for which attachment is necessary but in the order sheet (Annexure IV of the Petitioner!'' affidavit) nothing; has been stated that he was reconsidering the matter in the light of the observation made by the learned Additional Sessions Judge in his order dated 26-9-1988. There should have been a discussion in that order sheet showing reasons why it was necessary to pass the amended order u/s 145 Code of Criminal Procedure and also the reasons for re-attachment of the property u/s 146(1) Code of Criminal Procedure.

Learned Counsel for the Petitioners has referred the case of Lallan Prasad v. State of U.P. (supra) wherein it has been held that the Magistrate could record an order of attachment only in the event that he had come to one conclusion or the other, mentioned in Section 146 Code of Criminal Procedure without giving any finding, no order of attachment could be made. In the decision, Iqram v. State of U.P. (XXIX) 1992 A.C.C. 85 it was held that "Section 145 Code of Criminal Procedure has been enacted as an interim measure a only where breach of the peace in imminent empowering the executive Magistrate to maintain law and order. The dragging of the proceedings from 1973 to 1991 indicates that neither there is apprehension of breach of peace at present nor there is any justification for continuing the proceedings before the Magistrate any more on facts stated before him in the year 1973. From the orders filed in this petition it does not appear that any further material was produced by the parties, after the remand wais passed. Consequently it will be an abuse of the process of the court if these proceedings u/s 145 Code of Criminal Procedure are permitted to continue."

This decision is applicable to the instant matter on two grounds firstly, that when the case was sent back on remand to consider the matter afresh and also to see if there was any emergency, the Magistrate should have considered it in the light of the observation made in the revision and passed a reasoned order before starting proceeding u/s 145 Code of Criminal Procedure and 146 Code of Criminal Procedure afresh. The order dated 15-5-1993 does not seem to be in-conformity with the direction passed by the learned Additional Sessions Judge by his order dated 26-9-1988. The case of Iqram v. State of U.P. (supra) is also applicable to this case as the instant matter is also pending for about 12 years and unless special circumstances is shown it cannot be said that there is apprehension of breach of the peace even if the same is continuing for long 12 years. The learned Magistrate has not considered this aspect.

Learned Counsel for the Petitioner has also submitted that since purchase of the disputed property the Petitioners have been in possession aid the same has been confirmed during the consolidation proceedings and aft� Chakbandi was made the disputed plots were allotted to the Petitioner/Delivery of possession has once again been made after demarcation of 2 u/s 28 of the U.P. Consolidation of Holdings Act 1954 There was constant interference of Respondents No. 3 to 5 but it was ''never adhered to. No mutation was done in favour of Respondents No. 3 to 5 but has Redone in favour of the Petitioners. This aspect has not been looked in to by the learned Sub-Divisional Magistrate while passing the said order it has been stated that an objection u/s 6-A of the Consolidation of Holdings Act was made by Respondents No. 3 to 5 and the same is pending and accordingly there cannot be any order passed u/s 145 or 146 Code of Criminal Procedure. u/s 49 of UP CH Act there is a bar on civil and revenue court to entertain any suit or proceeding with respect to rights in dispute land for which a proceeding could or ought to have been taken under the U.P. consolidation of Holdings Act, 1954. There is no express prevent Section 49 of the said Act that no proceeding u/s 145 Code of Criminal Procedure 146 Code of Criminal Procedure could be launched but there are decisions that if a civil case is pending about title and possession of the said land, proceeding u/s 145 Code of Criminal Procedure or 146 Code of Criminal Procedure is a bar.

So proceeding u/s 145 Code of Criminal Procedure can be started if there it an imminent danger on the property in question which may cause breach of the peace of the locality and is of such a nature that proceeding under �or�L� 145 Code of Criminal Procedure or 146 Code of Criminal Procedure is a must. In that case such proceeding 2?2 permitted to continue even if the matter is pending before an authority of consolidation proceeding. In that case the Magistrate should be cautious in complying those provisions and it should be sparingly done only in case of extreme emergency. Nothing'' has been stated so far in the order dated 15-3-1993 that such a situation was there for which the learned Magistrate was compelled to start a fresh proceeding u/s 145/146 Code of Criminal Procedure It should also be considered that the dispute has been started 12 years ago aud the same is continuing uptil now, but no such consideration was made in the instant proceeding. On both the counts I find that the learned Magistrate did not apply his mind while passing the order on 15-3-1993 and it was passed mechanically, if not unwillingly, due to the direction issued by the Additional Sessions Judge on 26-9-1988. It was also not considered whether the situation which existed in 1988 when the order was passed by the learned Additional Sessions Judge sitting in revisional jurisdiction was continuing in 1993 when the impugned order was passed. Considering all these aspects I find that the order passed by (he learned Magistrate is bad in law and should be quashed.

The writ petition is, therefore, allowed. The order passed by the learned Additional Sub-Divisional Magistrate, Oyanpur, District Varanasi dated 15-3-1993 as well as the judgment and order passed by the learned Additional Sessions Judge dated 6-8-1993 are hereby set aside. The proceeding u/s 145 Code of Criminal Procedure pending before the Additional Sub-Divisional Magistrate Gyanpur, Varanasi, is also quashed. There will be no order as to costs.