Sugar Bai vs State of Haryana

S.S. Grewal, J. (Oral)

This revision petition is directed against the order of Additional Sessions Judge, Bhiwani, dated 24th July 1993, whereby the order passed by the Sub Divisional Magistrate, Loharu, dated 3.12.1992 concerning the attachment of the land in dispute along with crops standing thereon and appointing Revenue Officer Halqa Loharu as Sapurdar was set aside.

In brief facts of the case relevant for the disposal of this case are that the land in dispute measuring 20 Kanals 2 Marlas possession whereof was delivered to the present respondents on 20.11.1992 by the Consolidation authorities. The case of the petitioners is that they were not party to any such consolidation proceedings and that civil court had already granted stay order that they be not dispossessed from the land in dispute otherwise than by due process of law.

The Sub Divisional Magistrate, Loharu in his order dated 3.12.1992 mentioned the existence of dispute between the parties regarding the said land and that the said dispute is likely to cause breach of peace between the parties. Thereafter the Sub Divisional Magistrate concluded that neither of the parties are proved to be in cultivating possession of the land in dispute and ordered attachment of the land in dispute by appointing a sapurdar. The learned Additional Sessions Judge set aside the order of the Sub Divisional Magistrate, firstly, on the ground that the Sub Divisional Magistrate had not passed any specific order regarding initiation of proceedings as envisaged under Section 145(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and in the absence of any specific order under Section 145(1) of the Code the order for appointment of Sapurdar cannot be legally sustained, secondly, that the order passed by the Sub Divisional Magistrate does not indicate any emergency for passing such an order as there was no likelihood of disturbance of peace and tranquillity and, thirdly that the Magistrate had not afforded an opportunity to the parties to plead their case, file written statement or adduce evidence.

The learned counsel for the parties were heard.

The learned counsel for the petitioners contended that the order passed by the Sub Divisional Magistrate is an interim order under Section 145 (1) of the Code as well as a composite order which has been rightly passed according to the provisions of Sections 145 and 146 of the Code, that revision against such an interim order was not competent before the Additional Sessions judge and that the order passed is not open to the revision in view of the provisions of Section 397(2) of the Code. It was further submitted that assuming that no specific order under Section 145 of the Code had been passed in this case by the Sub Divisional Magistrate, it was a case of mere irregularity which would be curable under Section 465 of the Code until and unless material prejudice is shown to have been caused to the opposite party. Reference in this regard has been placed on the Single Bench authority of this court in Kehar Singh v. Satnam Chand and others, 1990(3) RCR 219 wherein relying upon Mulak Raj v. State of Haryana and another, 1978 C.L.R. (P&H) 179, it was observed that in the absence of prejudice nonpassing of order under Section 145(1) of the Code cannot be fatal to the passing of the impugned order.

In none of the aforesaid authorities the view of the apex Court in Mathura Lal v. Bhanwarlal and another, AIR 1980 SC 242 was considered to the effect that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146 of the Code.

Even otherwise so far as the case in hand is concerned perusal of the order passed by the Sub Divisional Magistrate on 3.12.1992 shows that he had mentioned in the order that there was neither any likelihood of breach of peace between the parties, nor there was any likelihood of breach of public transquillity. The learned Sub Divisional Magistrate after perusing of the facts on the record and after enquiring into the matter reached the conclusion that none of the parties was in cultivating possession and it could not be ascertained as to which party was in actual possession of the land in dispute and thereafter passed the order for attachment of the land in dispute and appointment of Sapurdar. In the earlier part of the order while describing the facts he had merely mentioned that it came to the notice of the court that likelihood to cause a breach of peace exists between the parties and that dispute is regarding possession of the said land. The impugned order of the Sub Divisional Magistrate is legally defective and is not in accordance with the provisions of Section 145(1) of the Code. The learned Sub Divisional Magistrate has not given specific date, time or opportunity to the parties to put in their written statement to put forth their respective claims concerning actual possession of the land in dispute. Nor parties were afforded any opportunity to lead their evidence or file their affidavits or documents by the Sub Divisional Magistrate. Without affording any opportunity to the parties the Sub Divisional Magistrate had come to the conclusion that he was not in a position to decide as to which party was in actual physical possession of the land in dispute. In case the Sub Divisional Magistrate had followed the procedure under Section 145 of the Code scrupulously and had afforded adequate opportunity to the parties to file their written statements, affidavits and other relevant documents, the parties would have been in a much better position to show how they entered into possession of the land in dispute before the dispute concerning possession actually arose between the parties. Remissness on the part of the Sub Divisional Magistrate in this regard to my mind had caused material prejudice to the parties including the petitioners to prove that they were in fact in actual physical possession of the land in dispute at the relevant time.

Faced with this situation, it had been contended by the learned counsel for the petitioners that the Sub Divisional Magistrate had given 23rd December 1992 as the next date of hearing and by that time the present respondents, obtained orders from the court of Additional Sessions Judge and proceedings before the Sub Divisional Magistrate had been stayed. The order dated 3rd of December, 1992 does not in any manner indicate that at that stage Sub Divisional Magistrate had adjourned the case for 23rd December, 1992. Nor from the perusal of the said order it could be presumed that it was an interim order or it had been passed as a composite order under Sections 145(1) and 146 of the Code at a preliminary stage or that final decision with regard to dispute regarding possession had to be passed at a latter stage. Thus mere fact that another date i.e. 23.12.1992 had been given in this case to the parties would not make any material difference.

Another important aspect of the case is that the present petitioners themselves have filed a civil suit in which the interim injunction had already been granted. In case the present petitioners want appointment of receiver or a Sapurdar it can very well approach the civil court for passing such an order. The plea raised by the learned counsel for the petitioners that revision before the Additional Sessions Judge was not maintainable because the order passed by the Sub Divisional Magistrate was merely an interim order under Sections 145(1) and 146 of the Code is without any merit. Rather from the facts and circumstances of the present case, it is quite obvious that the Sub Divisional Magistrate had actually passed a final order under Section 145 of the Code.

For the foregoing reasons, I am of the considered view that the order passed by the Sub Divisional Magistrate, dated 3.12.1992 cannot be legally substained. Accordingly the order passed by the Additional Sessions Judge, dated 24.7.1993 is maintained. There is no merit in this petition and the same is hereby dismissed.