Sau. Maya Vidyanand Moon And ... vs Kirtimala Bhanudas Bhagat And ...
2023 Latest Caselaw 984 Bom

                      1                     CRIWP474.18 (J).odt


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           : NAGPUR BENCH : NAGPUR.


      CRIMINAL WRIT PETITION NO. 474 OF 2018


PETITIONERS   : 1] Sau. Maya Vidyanand Moon,
                   Aged about 45 years, Occupation:
                   Household, R/o. Ward No.1, Durgapur,
                   Tah. and Distt. Chandrapur.
                2] Bhupendra Kisanrao Tayade,
                   Aged about 50 years, Occupation:
                   Service, R/o. Krishna Nagar, Chandrapur,
                   Tah. and Distt. Chandrapur.

                3] Ramesh Sampatrao Ambade,
                   Aged about 53 year, Occ: Service,
                   R/o. Shakti Nagar, W.C.L. Colony,
                   Durgapur, Tah. and Distt. Chandrapur.

                4] Sadashiv Sakharam Nagrale,
                   Aged about 58 years, Occ: Service,
                   R/o. Ward No.1, Durgapur,
                   Tah. & Distt. Chandrapur.

                5] Anil Dhananjay Wankhede,
                   Aged about 51 years, Occ: Service,
                   R/o. Ward No.1, Durgapur,
                   Tah. & Distt. Chandrapur.

                          VERSUS

RESPONDENTS   : 1] Kirtimala Bhanudas Bhagat,
                   Aged about 58 years, Occu: Nil,
                   R/o. Janata School, Durgapur,
                   Tah. & Distt. Chandrapur.
       2                     CRIWP474.18 (J).odt


2] Darshanatai Shalik Chandekar,
   Aged about 50 years, Occ: Household,
   R/o. Near Major Gate,
   Near Gharkul Apartment,
   Tukum Ward No.2, Chandrapur,
   Tah. & District Chandrapur.

3] Rekha Chandu Ratnaparkhi,
   Aged about 52 years, Occ: Household,
   R/o. Ward No.1, Durgapur,
   Tahsil & District Chandrapur.

4] Pramila Digamber Bhale,
   Aged about 55 years, Occ: Household,
   R/o. Near Ambedkar Chauk,
   Ward No.1, Durgapur,
   Tah. & Distt. Chandrapur.

5] Vijayatai Kamlakar Ramteke,
   Aged about 55 years, Occ: Household,
   R/o. Urjanagar, Near Ropeway,
   Durgapur, Tahsil & District
   Chandrapur.

6] Asha Anitya Lokhande,
   Aged about 35 years, Occ: Household,
   R/o. Ward No.1, Near Chandubaba
   Ashram, Durgapur, Tah. & District
   Chandrapur.

7] Kamalabai Gulab Moon,
   Aged about 51 years, Occ: Service,
   R/o. Ward No.1, Durgapur, Near
   Water Tank, Tah. & Distt. Chandrapur.

8] State of Maharashtra,
   through the Sub-Divisional Magistrate,
   Chandrapur, Tah. & Distt. Chandrapur.
                                        3                             CRIWP474.18 (J).odt


----------------------------------------------------------------------------------------------
          Ms. B. A. Dhapodkar, Advocate h/f Mr. Anand S. Joshi, Advocate
          for the petitioners.
          Ms. P. D. Pisurde, Advocate h/f Mr. S. V. Sirpurkar, Advocate for
          respondent nos.1 to 7
          Mr. Amit R. Chutke, A. P. P. for the respondent no.8/State
----------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : JANUARY 31, 2023.

ORAL JUDGMENT

1. In this writ petition, filed under Articles 226 and 227 of

the Constitution of India, correctness of the order dated 07.09.2017

passed by learned Additional Session Judge-3, Chandrapur in Criminal

Revision No. 30/2012 is questioned. By the impugned order, learned

Additional Sessions Judge, Chandrapur was pleased to dismiss the

revision application and confirm the order passed by the learned Sub-

Divisional Magistrate, Chandrapur dated 12.03.2012, whereby the

learned Sub Divisional Magistrate had directed the petitioners not to

disturb and interfere in the possession of the respondent nos.1 to 7

over 9000 sq.ft. land.

4 CRIWP474.18 (J).odt

2. The facts leading to this petition are as follows :

The petitioners are the executive body members of a trust

known as "Dhamma Prasar Samiti", registered under the Maharashtra

Public Trust Act, 1950, in the year 1994. The respondent nos.1 to 7

are claiming to be the members of a trust known as " Nalanda Bal

Sanskar Kendra". The dispute between the petitioners and respondent

nos.1 to 7 was in respect of possession over the land admeasuring 9000

sq.ft., part of survey No. 218, situated at mouza Durgapur,

Chandrapur. As per the petitioners, the land bearing survey No. 218,

Navin Nagar, Town Planning No. 1036, Sheet No.10, admeasuring

21081 sq.ft., was allotted to Dhamma Prasar Samiti in the year 1985.

The land admeasuring 9000 sq.ft. claimed to have been in possession

of respondent nos.1 to 7, according to the petitioners, is belonging to

the trust managed by them.

3. The dispute between the petitioners being the executive

members of Dhamma Prasar Samiti and the respondent nos.1 to 7

being the members of Nalanda Bal Sanskar Kendra, started on the

point of actual possession of said 9000 sq.ft. land. The petitioners 5 CRIWP474.18 (J).odt

claimed right over the said property being allottee in 1985. The

respondent nos.1 to 7 being the members of Nalanda Bal Sanskar

Kendra claimed right and possession over said 9000 sq.ft. land.

According to respondent nos.1 to 7, the original owner of the said land

was Isak Nehmay. Said Isak, in the year 1991, gifted the disputed land

to the respondent nos.1 to 7. The said land since then has been in

possession of respondent nos.1 to 7.

4. The dispute between the parties started way back in the

year 2002. In-charge of Police Station, Ramnagar, Chandrapur on

12.04.2002 filed Istegasha bearing No. 02/2002 under Section 145 of

the Code of Criminal Procedure before the learned Sub Divisional

Magistrate. In the said Istegasha, in-charge of police station, Ram

Nagar, contended that there was serious dispute between the parties in

respect of the property in question. They are fighting with each other

by claiming their possession over the said piece of the land. In-charge

of the police station, therefore, requested the learned Sub Divisional

Magistrate, Chandrapur to pass an appropriate order under Section

145 of Cr.P.C. Learned Magistrate passed the preliminary order 6 CRIWP474.18 (J).odt

directing both the parties to submit their written statements to justify

their possession over the disputed land. After considering the written

statements of the parties and the documents, learned Magistrate

initially on 19.08.2002 found the petitioners in possession of the land

and directed the respondent nos.1 to 7 not to disturb their possession.

Respondent nos.1 to 7 challenged this order in the District and

Sessions Court, Chandrapur. Learned Ad-hoc Additional Sessions

Judge, Chandrapur by his order dated 19.07.2003 was pleased to allow

the revision application. The order passed by the learned Sub

Divisional Magistrate was set aside and the matter was remanded to the

learned Magistrate for fresh enquiry in the backdrop of the

observations made in the order dated 19.07.2003.

5. Learned Sub Divisional Magistrate conducted the inquiry

afresh and passed the order on 12.03.2012. During fresh inquiry, the

learned Magistrate found the respondent nos.1 to 7, on the basis of the

material on record, in possession of the said property and directed the

petitioners not to cause obstruction to the possession of respondent

nos.1 to 7. The petitioners challenged the said order passed by the 7 CRIWP474.18 (J).odt

learned Magistrate in the Sessions Court, Chandrapur. Learned

Additional Sessions Judge, vide order dated 07.09.2017 dismissed the

revision application filed by the petitioners and confirmed the order

passed by the learned Magistrate. Against this order, the petitioners are

before this Court.

6. I have heard Ms. B. A. Dhapodkar, learned advocate

holding for Mr. Anand S. Joshi, learned advocate for the petitioners,

Ms. Poonam D. Pisurde, learned advocate holding for Mr. S. V.

Sirpurkar, learned advocate for respondent nos.1 to 7 and Mr. Amit R.

Chutke, learned Additional Public Prosecutor for respondent no.8/

State. Perused the record and proceedings.

7. Learned advocate for the petitioners submitted that

learned Sub Divisional Magistrate, Chandrapur as well as learned

Additional Sessions Judge, Chandrapur widened the scope of enquiry

contemplated under Section 145 of the Cr.P.C. Learned advocate took

me through the record and submitted that the land admeasuring 21081

sq.ft. was given to the trust managed by the petitioners in the year 8 CRIWP474.18 (J).odt

1985 and the same has been in their possession. Learned advocate

submitted that there is ample evidence to establish the possession of

the petitioners over the disputed piece of land. Learned advocate

submitted that the material placed on record to establish the possession

has not been properly appreciated. Learned advocate, therefore,

submitted that both the orders are required to be quashed and set aside.

8. Learned advocate for the respondent nos.1 to 7 submitted

that the respondents are not claiming entire land of 21081 sq.ft.

Learned advocate submitted that the land admeasuring 9000 sq.ft. was

gifted to Nalanda Bal Sanskar Kendra by the owner Isak Nehamay in

the year 1991. Learned advocate submitted that there is ample

evidence on record to establish that the possession of this piece of land

is with respondent nos.1 to 7 since 1991. Learned advocate pointed

out the boundaries of the piece of land admeasuring 9000 sq.ft from

the reply filed before the learned Magistrate. Learned advocate took

me through the record and pointed out that during the course of

enquiry, spot panchanama was drawn by the police on 08.09.2002 and

it has been specifically recorded in the said panchanama that possession 9 CRIWP474.18 (J).odt

of the piece of land admeasuring 9000 sq.ft. is with the respondent

nos.1 to 7. Learned advocate pointed out that respondent nos.1 to 7

are carrying out full fledge activities of Nalanda Bal Sanskar Kendra

from the structure constructed on this land. Learned advocate

submitted that the order passed by the learned Magistrate and

confirmed by the learned Additional Sessions Judge in revision is well

reasoned order supported by the material.

9. Learned Additional Public Prosecutor for the State

supported the order passed by the learned Sub Divisional Magistrate

and the order passed by the learned Additional Sessions Judge in

revision confirming the order of learned Magistrate.

10. It is seen on perusal of the record that the dispute between

the parties is with regard to the possession over the piece of land

admeasuring 9000 sq.ft., a part of survey No. 218. According to the

petitioners, land admeasuring 21081 sq.ft. was given in possession of

the trust managed by them in the year 1985. According to them,

therefore, there was no question of handing over possession of 10 CRIWP474.18 (J).odt

disputed piece of land admeasuring 9000 sq.ft. from their land by Isak

Nehamay to the trust administered by respondent nos.1 to 7.

11. At the outset, it is necessary to mention that the issues

with regard to the title and right to possession of the property in

dispute are not germane for the enquiry in the proceedings initiated

under Section 145 of the Cr.P.C. The Court while dealing with the

proceedings under Section 145 of Cr.P.C. is mainly concerned with

possession of the property in dispute on the date of the preliminary

order and dispossession, if any, within two months prior to that date.

The Court is not required to decide either title to the property or the

right of possession of the same. The question with regard to the

possession on the given date or two months prior to initiation of the

preliminary enquiry, is the question of fact and therefore, has to be

decided on the basis of the contentions of the parties and the

supporting evidence. It is further pertinent to note that the object of

Section 145 of Cr.P.C. is merely to maintain law and order and to

prevent breach of peace by maintaining one or either of the party's

possession. The object of this proceeding is not to evict any person 11 CRIWP474.18 (J).odt

from possession. Therefore, the question with regard to the title or

right to possession are not germane to the enquiry. Section 145 of

Cr.P.C. is a part of Chapter X of the Cr.P.C. The title of the Chapter is

"Maintenance of Public Order and Tranquility". It is to be noted that

therefore, before passing an order under Section 145 of Cr.P.C., the

Executive Magistrate must be satisfied from a report of a police officer

or upon other information that there exist a dispute and said dispute is

concerning any land or water or boundaries thereof and is likely to

cause breach of peace.

12. In this case, the dispute is with regard to the possession

over the piece of land admeasuring 9000 sq.ft. by the rival parties.

They reported the matter to police by asserting their right of possession

over this piece of land. In-charge of the police station, after assessment

of the gravity of the situation and the nature of the dispute, made an

application to learned Sub Divisional Magistrate, Chandrapur

requesting him to pass an appropriate order. In-charge of the police

station specifically stated in his report that if an order is not passed

directing one of the parties to retain the possession and other party not 12 CRIWP474.18 (J).odt

to disturb the possession, there would be serious dispute between them

and which ultimately would cause breach of peace. Learned Sub

Divisional Magistrate conducted preliminary enquiry. Parties filed

their written statements before the learned Magistrate. It is seen on

perusal of the order passed by the learned Magistrate and confirmation

of the said order in revision by the learned Additional Sessions Judge

that the documents filed with the report by the in-charge of the police

station were taken into consideration. On the basis of the documents

and the rival contentions of the parties set out in their written

statements, learned Magistrate found that respondent nos.1 to 7 were

in possession of the property in dispute on the given date and they are

entitled to remain in possession without disturbance of the same by the

petitioners. Learned Magistrate accordingly directed the petitioners

not to disturb possession of respondent nos.1 to 7. Correctness of the

order was examined by the learned Additional Sessions Judge while

deciding the revision. Learned Additional Sessions Judge found the

material considered by the learned Magistrate sufficient to maintain

the order passed by the learned Magistrate.

13 CRIWP474.18 (J).odt

13. On minute perusal of the material and particularly the

spot panchanama, it is seen that no error or mistake was committed

initially by the learned Sub Divisional Magistrate and in revision by the

learned Additional Sessions Judge. The documents namely spot

panchanama, report of measurement of the land by Land Inspection

Office, registration certificate of both the trusts and the number of

revenue documents, were taken into consideration. The resolution of

Gram Panchayat, Durgapur dated 13.05.2002 revealed that the Gram

Panchayat had decided to record the piece of land admeasuring 9000

sq.ft. in the name of the trust managed by respondent nos.1 to 7 for the

purpose of assessment. It is further pertinent to note that in a civil suit

filed by the trust managed by the petitioners, the relief was not granted

in favour of the trust. The Civil Court found that one Asha Lokhande

was occupying 1600 sq.ft land and one Sunanda Khobragade was

occupying 1600 sq.ft. Land. The land in possession of Asha Lokhande

and Sunanda Khobragade, as per the petitioners, was part of the land

admeasuring 21081 sq.ft. allotted to their trust. It is, therefore, seen

that the parties have asserted their rival claims in respect of this piece of

land. The said dispute cannot be gone into in this proceeding. The 14 CRIWP474.18 (J).odt

limited issue with regard to the possession of the concerned party on

the given date and that too for the purpose of avoiding breach of peace,

has been resolved in this proceeding.

14. After considering the pros and cons of the matter, I am

satisfied that no mistake or error was committed by the learned

Additional Sessions Judge while rejecting the revision. As such, I

conclude that there is no substance in the petition. The petition

deserves to be dismissed and it is accordingly dismissed.

The order dated 07.09.2017 passed by learned Additional

Session Judge-3, Chandrapur in Criminal Revision No. 30/2012,

confirming the order passed by the learned Sub-Divisional Magistrate,

Chandrapur dated 12.03.2012, is maintained.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:31.01.2023 18:36