Hindalco Industries Ltd. vs State Of U.P. & Others
2013 Latest Caselaw 4964 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 52
 
Criminal Misc. application No. 23225 of 2008
 
Hindalco Industries Limited, Renukoot, district Sonebhadra     	Applicant
 
					Versus 
 
State of U.P. and others					   		 Opp. Parties
 
Hon'ble Ravindra Singh,J.

Heard Sri Rahul Chaturvedi,Sri Ritvik Upadhyaya, learned counsel for the applicant, learned A.G.A. for the state of U.P. and Sri Rajeev Lochan Shukla, learned counsel for O.P. Nos. 2 and 3.

This application under section 482 Cr.P.C. has been filed by the applicant Hindalco Industries Limited with a prayer to quash the 'consolidated order dated 6.8.2008' passed by the S.D.M. Duddhi/Pipri district Sonbhadra under section 145(1) and 146(1) Cr.P.C. in case no. 14 of 2008.

The fact in brief of this case are that on the police report dated 6.8.2008 submitted by the Officer-in-Charge of P.S. Pipri district Sonbhadra, the learned S.D.M. Duddhi/Pipri district Sonbhadra passed a consolidated order dated 6.8.2008 by which notice under section 145(1) Cr.P.C. has been issued and the order of attachment of the property under section 146(1) Cr.P.C. has also been passed. According to the police report the Hindalco company was running a school in the name and style of 'Adarsh Shiksha Niketan, Renukoot,' district Sonbhadra it was having only a Head Master, it was having no teacher and students. The Hindalco Company was doing the construction work in the school. The Hindalco Company wanted to close the school, on the other hand second party Sri Dwarika Singh and Lallan Rai wanted to run the school. The management of the school had permitted 20-25 guards of the Hindalco company to reside there, it has been opposed by the second party and in second party's leadership a crowd went to take out the security guards from the school. There was a dispute of 'ownership' also and it has been requested to attach the school in exercise of the power conferred under section 145(1) Cr.P.C. Both the parties were directed to appear before the court of S.D.M. concerned on 21.8.2008 at 10.00 a.m. to give their evidence to establish their title. In the same order the property in dispute i.e. School was attached in exercise of the power conferred under section 146 Cr.P.C. The learned magistrate concerned on the same day passed order under section 146(1) Cr.P.C. by which the school in dispute was attached. The report of the Officer-in-Charge of the Police station concerned shows that in pursuance of the order dated 6.8.2008 the 'school in dispute' was attached but nobody was ready to take its supurdgi that is why it was kept in the control of the police.

It is contended by the learned counsel for the applicant that the learned magistrate concerned has committed error in passing the consolidated order dated 6.8.2008 by which notice under section145(1) Cr.P.C. has been issued to both the parties and in the same order the property has been attached in exercise of the power conferred under section 146 (1) Cr.P.C., no reason for urgency of attachment of property has been shown by the learned S.D.M. concerned even notice has been issued to establish their title over the property in dispute. The learned magistrate concerned was not having the power to decide the title of the property in dispute, such power is conferred to civil court. The learned S.D.M. was empowered to initiate the proceedings only to decide the possession over the property in dispute, in such circumstances, the order dated 6.8.2008 is illegal, which has been passed without applying judicial mind, the same may be set aside.

In reply to the above contention, it is submitted by the learned A.G.A. and the learned counsel appearing on behalf of O.P. Nos. 2 and 3 that the learned magistrate concerned has not committed any error in passing the impugned order because there was an urgency, in case, such order would not have been passed, the dispute was likely to cause breach of peace.

From the perusal of the record and considering the submission made by the learned counsel for the applicant and the learned A.G.A. it appears that in the present case learned S.D.M. Duddhi/Pipri district Sonbhadra passed the order dated 6.8.2008 under section 145(1) and 146(1) Cr.P.C., which is a consolidated order by which both the parties have been required to appear before the court of S.D.M. Duddhi/Pipri with an evidence to establish their title over the property in dispute in exercise of the power conferred under section 145(1) Cr.P.C. and by the same order the property in dispute i.e. the college campus and its building has been attached in exercise of the power conferred under section 146(1) Cr.P.C. and the Officer-in-Charge of P.S. Pipri was directed to ensure the compliance of the order of attachment. The impugned order dated 6.8.2008 shows that both the parties have been required to appear before the court of S.D.M. Duddhi/Pipri to establish their title over the property in dispute, such report has also been submitted by the Officer-In-Charge of P.S. Pipri that there was a dispute between the parties over the ownership/title of the college but the issue of title may not be decided by the court of S.D.M. Duddhi/Pipri such issue may be decided by the civil court/other competent court. The proceedings under section 145 Cr.P.C. may be initiated whenever an Executive Magistrate is satisfied from the report of the Police Officer or upon other information that a dispute is likely to cause the breach of peace exists from any land or water or the boundaries thereof, in such condition the learned magistrate concerned passes an order in writing,stating 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 date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The Section 145 Cr,P.C. is read as under :-

145.Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) Whenever an Executive Magistrate is satisfied from a report of a police or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing,stating 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 date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks

necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection(1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed,

but, subject to such cancellation, the order of the Magistrate under subsection(1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of

law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.

The language of section 145(1) Cr.P.C. is very clear which empowers the Executive Magistrate to pass the order in writing requiring the parties concerned to appear in his court to put in written statement of their respective claim as respects of the fact of actual possession of the subject of dispute, if such an order has been passed by any of the Executive Magistrate it may be beyond his jurisdiction. In the present case also the impugned order has been passed requiring the parties concerned to put in written statement of their respective claims as respects of the fact of actual title/ownership of the subject in dispute, therefore, the order passed by the learned magistrate concerned in exercise of the power conferred under section 145(1) Cr.P.C. is illegal. By the impugned order the learned S.D.M. Duddhi/Pipri has attached the property in dispute in exercise of the power conferred under section 146(1) Cr.P.C. The impugned order is a consolidated order, a consolidated order may not be passed, the executive magistrate is empowered to pass order under section 146(1) Cr.P.C. for attachment of the property in dispute, such order may be passed separately, after passing the order under section 145(1) Cr.P.C. even the miscellaneous order on the same day under section 145(1), 146(1) Cr.P.C. are not supposed to be passed, in case miscellaneous order under section 146(1) Cr.P.C. is passed on the satisfaction of the urgency it must be recorded in such order.

In the present case preliminary order under section 145(1) Cr.P.C. is illegal. The impugned order is a consolidated order, no urgency has been shown by the learned magistrate concerned to pass such order, being a consolidated order, which is illegal. Therefore, in view of the above discussion the impugned order dated 6.8.2008 passed by the learned S.D.M. Duddhi/Pipri in case no. 14 of 2008 is illegal and is hereby set aside and it is directed that the status quo ante as on 6.8.2008, before passing the impugned order, shall be restored but it shall be open to the learned S.D.M. Duddhi/Pipri district Sonbhadra to initiate a fresh proceedings in accordance with law.

The interim order dated 2.9.2008 passed by this court is hereby vacated.

Accordingly this application is allowed.

Dt. 7.8.2013/NA