Bombay High Court
Prasad S/O Laxman Deukar And 2 Others vs Bollineni Venkat Ramanyya Director ... on 3 February, 2025
2025:BHC-NAG:1021
J-cwp122.23.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.122 OF 2023
1. Prasad s/o. Laxman Deukar,
Aged about 33 years,
Occupation Agri./Business.
2. Atul s/o. Pandurang Deukar,
Aged about 33 years,
Agri./Business.
Both R/o. 51-A, Ne Dnyaneshwar Nagar,
Manewada Road, Nagpur.
3. Dilip s/o. Mahadeorao Biwde,
Aged about 55 years,
Occupation : Agri./Business,
R/o. 51-A, Ne Dnyaneshwar Nagar,
Manewada Road, Nagpur. : PETITIONERS
...VERSUS...
1. Bollineni Venkat Ramanyya,
Director,
Kakatiya Infrastructure Pvt. Ltd.,
Hyderabad,
R/o. B/3, Universal Medas,
New Sneha Nagar,
Wardha Road, Nagpur.
2. Sub Divisional Officer/Magistrate,
Nagpur Rural, Civil Lines, Nagpur. : RESPONDENTS
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Mr. Bhupesh W. Patil, Advocate for Petitioners.
Mr. Vivek V. Bharadwaj, Advocate for Respondent No.1.
Mr. C.A. Lokhande, Addl. Public Prosecutor for Respondent No.2/State.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 03rd FEBRUARY, 2025.
J-cwp122.23.odt 2/12
JUDGMENT :
1. Heard. Rule.
2. By this petition, the petitioners are seeking following reliefs :
(i) Issue an appropriate writ thereby quash and set aside the
order dated 23.9.2022, passed by the respondent in Criminal Case
No.2/2022 under Section 145 of the Code of Criminal Procedure.
(ii) Issue an appropriate writ thereby quash and set aside
the order passed by the Additional District and Sessions Judge, Nagpur in
Criminal Revision No.197/2022.
(iii) Considering the facts of the case matter may be kindly
remanded to the office of respondent No.2 for fresh disposal after
considering all the issues involved in case and as stated in the petition.
(iv) Saddle costs of the petition upon the respondents
and;
(v) Grant any other relief as deems fit in favour of the
petitioners in the interest of justice.
3. Brief facts, which are necessary for the disposal of the petition
are as under :
Ghansham Mahadeorao Dahane was the owner of agricultural
land at Mouza Ruikhairi, Taluka Nagpur bearing Survey No.20, admeasuring
2.36 H.R. In 2002, he sold the said land admeasuring 0.81 Hec.R to
Vijaykumar Parate and, therefore, Survey No.20 divided into two parts. As
per the said division Suvey No.20/1 which was remaining land of Ghansham
admeasuring 1.45 HR and Survey No.20/2 was in respect of land sold to
Vijaykumar Parate admeasuring 0.81 HR. 0.10 HR area which was in
possession of the original owner Ghansham was not mentioned in any
revenue record though he was in possession of the said portion. The original
owner have measured the land in the year 2002 through T.I.L.R. As 0.10
HR land was not mentioned in the name of owner, he again applied for
measurement on 15.6.2004. After measurement original owner Ghansham
sold Suvey No.1.45 HR to respondent No.1 Bollineni Venkat Ramanyya, as a
Director of Kakatiya Infrastructure Private Limited, Hyderabad by registered
sale-deed. The respondent No.1 accordingly was in possession of 1 Hectare
45 R. As per the contention of the petitioners, respondent No.1 was also
intending to purchase 0.10 HR and entered into an agreement but original
owner who was in possession of 0.10 R has sold out the same to the present
petitioners. Prior to executing sale-deed said Ghansham initiated process to
record his name in revenue record as far as 0.10 R is concerned. The Sub-
Divisional Officer passed an order on 20.8.2018 and directed Tahsildar to
take entry in the name of legal heirs of Ghansham. The legal heirs of
Ghansham executed sale-deed in favour of petitioners to the extent of 0.10 R
on 3.9.2020. Accordingly, the name of the petitioners recorded in 7/12
extract and possession was handed over. The petitioners developed said
land.
4. It is alleged that as respondent No.1 willing to purchase said
portion but the company could not purchase, he filed a report against the
present petitioners on 7.2.2022 alleging that present petitioners are
attempting to disturb the peaceful possession and committing the breach of
peace. By taking cognizance of the said report Police Station Officer
submitted report to Sub-Divisional Officer. The Sub-Divisional Officer
respondent No.2 initiated proceeding under Section 145 of the Code of
Criminal Procedure and restrained the petitioners from disturbing the
possession of respondent No.1 without considering that petitioners are also
co-owners by passing order on 27.6.2022. The petitioners had challenged
the impugned order dated 14.7.2020 by preferring revision before the
District Judge, Nagpur bearing Criminal Revision No.197/2022 which was
dismissed by the Sessions Court on 23.9.2022. Hence, this petition.
5. The said petition is opposed by the respondent No.1 as well as by
the State. It is contended on behalf of the respondent No.1 that the
petitioners have deliberately suppressed the material facts and on the sole
ground the writ petition deserves to be rejected. It is further submitted that
the petitioners had suppressed order dated 20.8.2018 passed by the learned
Sub-Divisional officer, Nagpur by which the possession of the respondent
No.1 was protected and confirmed. Thus, the possession of respondent was
always protected and which has attained finality. The order passed by the
Sub-Divisional Officer never challenged by the petitioners. It is further
contended that the petitioners made an attempt to disturb the possession of
respondent No.1 and, therefore, the respondent No.1 filed the complaint
before the Police Authorities and Police Authorities by taking cognizance of
the same submitted a report to the Sub-Divisional officer and, therefore, the
order under Section 145 of the Code of Criminal procedure is passed.
6. Learned Additional Public Prosecutor also strongly opposed the
said petition on the ground that as per Section 8 of the Maharashtra
Prevention of Fragmentation and Consolidation of Holdings Act, 1947
leaving the area of 0.10 R is not permissible in the eyes of law. The
measurement-sheet in case of 272/2002 dated 8.3.2002 prepared by the
T.I.L.R. office Hingna had given their endorsement about process which
could not be completed due to encroachment made by the petitioner upon
the adjacent land bearing No.90 and, therefore, old measurement case
No.20/2001 kept for identification. Though the petitioner has submitted
that he is in possession since 2012 but the agreement of sale does not create
any right and interest over the disputed land and sale-deed was executed
after eight years in favour of petitioners which created the suspicion about
the transaction. It is further submitted that as the petitioners with
ill-intention caused the disturbance to the original land owner, the land
owner apply for rectification of land but the petitioners are creating
disturbance which is causing disturbance to the peace and, therefore, the
Police machinery set in motion and referred the matter to the respondent
No.2. A preliminary inquiry discloses that there is likely to cause a breach of
peace and, therefore, the order is passed by the Sub-Divisional Officer and
hence no interference is called for.
7. After hearing both the sides and on perusal of the record it
reveals that there is no dispute as to the fact that one Vijaykumar Parate has
purchased 0.81 HR from Survey No.20 and respondent No.1 has purchased
1.45 HR from the original owner. The dispute is as to 0.10 HR which
according to the petitioner he had purchased by way of registered sale-deed.
It is submitted by the petitioners that the Sub-Divisional Officer passed an
order dated 20.8.2018 and directed the Tahsildar to take entry in the name
of legal heirs of Ghansham and thereafter legal heirs of Ghansham executed
the sale-deed in favour of the petitioners. The 7/12 extract annexed
alongwith sale-deed dated 3.9.2020 of the petitioners shows that the
petitioner was aware about the order passed by the Sub-Divisional Officer
since inception. The said order was part and parcel of the record of the
learned Sub-Divisional Officer, Nagpur, who has passed the impugned order.
The petitioners have deliberately suppressed the said order from this Court
and attempted to take unfair advantage from this Court. The registered sale-
deed dated 28.9.2006 was executed in favour of respondent No.1 in respect
of 1.45 HR in Khasra No.20/1. At the relevant time 7/12 extract were
independent in respect of said Khasra No.20/1. Thus, possession and
boundaries of the respondent No.1 were confirmed. The learned Sub-
Divisional Officer, Nagpur (Gramin) passed an order on 20.8.2018 thereby
holding that without disturbing the possession and boundaries of
Mr. Vijaykumar Parate and respondent, the predecessor of applicant i.e.
Dashrath Dahane is allowed to take possession of 0.10 HR land. By way of
registered sale-deed dated 3.9.2020 the applicant become owner of land
admeasuring 0.10 HR. At the relevant time the revenue record i.e. entire
Khasra No.20/1 and 20/2, admeasuring about 1.45 HR and 0.81 HR were
respectively belonging to Vijaykumar Parate and respondent No.1. In the
light of above documentary evidence the Sub-Divisional Officer concluded in
the impugned order that when the boundaries and possession of the
respondent No.1 and Mr. Vijaykumar Parate is confirmed by earlier order
dated 20.8.2018. The said boundaries and possession of the said two
owners could not be allowed to be disturbed. The above mentioned
impugned order was upheld by the Sessions Court. Thereafter also an illegal
act on the part of the petitioners was to take illegal possession of the area
0.10 HR land by disturbing the possession of respondents which created
various difficulties to the respondents as well as the owner of the adjacent
land owner Mr. Vijaykumar Parate. The entire boundaries mentioned in
both the sale-deeds which were executed in favour of Vijaykumar Parate and
respondent as per the then prevalent sub-division 7/12 extract, shall be
rendered incorrect. The attempt of the petitioners to take possession of 0.10
HR by disturbing possession of respondent No.1 as a breach of peace in the
given locality. He has not only disturb the possession but he has also
removed the flex which was affixed in the name of respondent No.1 and thus
disturbed the public peace in the locality and, therefore, the order passed by
the Sub-Divisional Officer directing not to disturb the possession of
respondent No.1 and Vijaykumar Parate.
8. Section 145 of the Criminal procedure Code is the part of
Chapter X of the Criminal Procedure Code, 1973 dealing with maintenance
of public order and tranquility. Section 145 of the Criminal procedure Code
is the part of of sub-chapter (D) dealing of with dispute as to immovable
property. Besides Section 145 of Criminal Procedure Code Sections 146, 147
and 148 of the Criminal procedure Code are also part of Sub-Chapter (D) of
Chapter X of the Criminal Procedure Code. It is found that the disputes as to
the land and water often results in breach of peace, violence and blood shed,
the Executive Magistrate have been empowered under Section 145-148 to
intervene at an interim stage of such a dispute and to compel the disputants
to have recourse to legal remedies. If, upon a report of a Police Officer or
upon other information, an Executive Magistrate is satisfied that a dispute
concerning any land or water or the boundaries thereof exists within his
jurisdiction, and that such dispute is likely to cause a breach of peace, he
shall make an order in writing requiring the parties concerned in such
dispute to attend to his Court on a specified date and time, and to put in
written statements of their claims regarding the fact of actual possession of
the subject of dispute. While making such order, the Magistrate shall state
the grounds for his satisfaction referred to above. The very foundation of the
jurisdiction of a Magistrate in cases under Section 145 is based on the
existence of a dispute giving rise to apprehension of breach of peace and as
soon as such apprehension ceases to exists or if it never existed, the
jurisdiction of the Magistrate to proceed with the case ceases and the only
order he has to pass is to drop the proceedings. The inquiry under Section
145(4) is limited to the question of actual possession on the relevant date
and is not concerned with the claims and merits all the parties in regard to
the right to possess the subject of dispute. If the Magistrate decides that one
of the parties was in 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 disturbances of such
possession until such eviction.
9. The Hon'ble Apex Court in the case of R.H. Bhutani Vs. Miss
Mani J. Desai and others, Judgment delivered in Criminal Appeal No.17 of
1968, on 23.4.1968 and held that the object of Section 145, no doubt is to
prevent breach of peace and for that end to provide a speedy remedy by
bringing the parties before the Court and ascertaining who of them was in
actual possession and to maintain status-quo until their rights are
determined by a competent Court. The section requires that the Magistrate
must be satisfied before initiating the proceedings that a dispute, regarding
an immovable property exists and that such dispute is likely to cause breach
of peace. But once he is satisfied of these two conditions, the section
requires him to pass a preliminary order under sub-section (1) and thereafter
to make an inquiry under sub-Section (4) and pass a final order under sub-
Section (6). It is not necessary that at the time of passing final order the
apprehension of breach of peace should continue or - exist. The enquiry
under Section 145 is limited to the question as to who was in actual
possession on the date of preliminary order irrespective of the rights of the
parties. Under the second proviso, the party who is found to have forcibly
and wrongfully dispossessed within two months next preceding the date of
the preliminary order may for the purpose of the enquiry be deemed to have
been in possession on the date of that order. The opposite party may of
course prove the dispossession took place more than two months next
preceding the date of that order and in that case the Magistrate would have
to cancel his preliminary order. On the other hand, if he is satisfied that
dispossession was both forcible and wrongful and took place within the
prescribed period, the party dispossessed would be deemed to be in actual
possession on the date of the preliminary order and the Magistrate would
then proceed to make his final order directing dispossessor to restore
possession and prohibit him from interfering with the possession until the
applicant is evicted in due course of law. This is broadly the scheme of
Section 145.
10. What is imperative is the satisfaction under sub-section (1) of the
Magistrate. The question whether on the material before him, he should
initiate proceeding or not is, therefore, in his discretion which, no doubt has
to be exercised in accordance with well recognized rules of law in that
behalf. There are no hard and fast rules laid down as to the sufficiency of
material on the basis of which Magistrate has to record his satisfaction. The
language of sub-section is clear and unambiguous that he can arrive at his
satisfaction both from Police report or from other information which must
include an application by the party dispossessed.
11. Thus, Section 145 of the Criminal Procedure Code empowers that
if the Executive Magistrate is satisfied from a report of the Police Officer or
upon other information that a dispute likely to cause a breach of peace exists
concerning any land or water or the boundaries thereof within his local
jurisdiction, he can pass appropriate orders. Primarily proceeding under
Section 145 of the Criminal Procedure Code is taken to maintain peace, law
and order and not to decide the title of the property which the Civil Court
alone is competent to do. Scope of Section 145 of the Criminal Procedure
Code is to pass a temporary order, when there is a dispute over a property
which gives rise to cause for breach of peace.
12. Reverting back to the case in hand, at the instance of complaint
filed by the respondent No.1 Police initiated the action indicating breach of
peace and law and order, preliminary inquiry was conducted though the
learned counsel for the petitioner submitted that the Executive Magistrate
has failed to arrive at a subjective satisfaction in respect of the dispute and
also about the likelihood of causing breach of peace which is not sustainable
as the learned Executive Magistrate has considered the events that the
petitioners were involved not only encroaching over the portion but also
removed the flex which was affixed by the respondent No.1 and also
observed that as far as the claim of the petitioners are concerned regarding
0.10 Hectare which cannot be at the middle portion of the land and,
therefore, the primary order of keeping a peace and to maintain peace and
law and order situation restrained the petitioners from interfering the
possession of one Atul Pandurang Deulkar and respondent No.1. The reason
assigned by the Executive Magistrate, Nagpur is that both the parties have
claimed right and unless and untill it is decided there should be an order
under Section 145 of the Code of Criminal Procedure. The contention of the
petitioners that impugned order does not satisfy the procedure contemplated
under Section 145 of the Code of Criminal Procedure and that there is a
violations of the principles of natural justice is not sustainable. From the
impugned order it could be deduced that the Executive Magistrate has
conducted an inquiry, by giving opportunity to all the parties and then issued
the order. There is no manifest illegality in the impugned order warranting
the inference.
13. In the light of the above discussion, the writ petition is devoid of
merits and liable to be dismissed accordingly.
14. Rule discharged. Writ Petition is dismissed.
(URMILA JOSHI-PHALKE, J.)
okMksns
Signed by: Mr. Devendra Wadode
Designation: PA To Honourable Judge
Date: 03/02/2025 12:39:41
