Mr. Sayyad Ayaz Ali S/O Magdum Ali And ... vs Sup Divisional Magistrate, Nagpur ...
2025 Latest Caselaw 1806 Bom

Bombay High Court

Mr. Sayyad Ayaz Ali S/O Magdum Ali And ... vs Sup Divisional Magistrate, Nagpur ... on 24 January, 2025

2025:BHC-NAG:755


              Judgment

                                                             346 apl357.24

                                              1

                   IN THE HIGH COURT OF JUDICATURE AT
                     BOMBAY, NAGPUR BENCH, NAGPUR

                   CRIMINAL APPLICATION (APL) NO.357 OF 2024

              1. Mr.Sayyad Ayaz Ali s/o Magdum Ali,
              aged about 45 years, occupation : business,
              r/o Alfiya House, plot No.24-A,
              Rathod Layout, Nagpur, district Nagpur.

              2. Alfiya Ali Sayyad w/o Sayyad Ayaz Ali,
              aged about 38 years, occupation : household,
              r/o Alfiya House, plot No.24-A,
              Rathod Layout, Nagpur, district Nagpur. ..... Applicants.

                                   :: V E R S U S ::

              1. Sub Divisional Magistrate,
              Nagpur City, Nagpur.

              2. Police Station Officer,
              Police Station Gittikhadan, Nagpur City,
              district Nagpur.

              3. Shyam Kumar Daulat Barve,
              aged about 43 years, occupation agriculturist,
              r/o Kanhan, taluka Parshivani,
              district Nagpur.               ..... Non-applicants.
              ==============================
              Shri R.R.Vyas, Counsel for Applicants.
              Shri C.A.Lokhande, Additional Public Prosecutor for Non-
              applicant Nos.1 & 2 State.
              Shri P.P.Kothari, Counsel for Non-applicant No.3.
              ==============================

                                                                   .....2/-
 Judgment

                                                  346 apl357.24

                              2



CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 07/01/2025
PRONOUNCED ON : 24/01/2025

JUDGMENT

1. The present application is filed under Section

482 of the Code of Criminal Procedure for quashing of

order dated 29.12.2023 passed by learned Sub

Divisional Magistrate at Nagpur in Criminal Case

No.5/2022 under Section 145 of the Code.

2. Facts giving rise to the application are as under:

The Assistant Police Inspector of Gittikhadan

Police Station, Nagpur had submitted a report to the

Special Executive Magistrate/Sub Division Officer,

Nagpur City on 5.9.2023 contending that plot Nos.23A ,

24, 25 to 29, and 34 and 35A situated at Shashikant

Cooperative Society were purchased by one Prakash

Goyal, Om Mittal, and present applicants in the year

.....3/-

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346 apl357.24

2012 from Shri Shashikant Bodad, the President of the

said Housing Society. The plot No.23A and 24 were

owned by Prakash Goyal and Om Mittal and the

applicants had no concern with those plots as partition

already took place between them as to the distribution

of the properties. After partition, plot Nos.23A and 24

are already sold by Om Mittal and Prakash Goyal to one

Shyamkumar Daulat Barve. At present, both plots are

disputed properties and the dispute is pending in the

civil court at Nagpur. As per the partition deed, plot

Nos.25, 26, and 27 were allotted to the share of

Prakash Goyal admeasuring 4739 feet. Whereas, plot

Nos.28, 29, and 34 admeasuring 4739 feet were

allotted to Om Mittal. Applicant Ayaz Ali got plot

No.35 admeasuring 4556 square feet. The said

partition was effected on 18.10.2012. In the year 2014,

Prakash Goyal and Om Mittal entered into an

.....4/-

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346 apl357.24

agreement to sale the said plots. The dispute as to the

ownership of the disputed plots was pending in the civil

court. The vendor of the non-applicant No.3 filed an

application for rejection of the plaint under Order VII

Rule 11 of the Civil Procedure Code which gone upto

the Supreme Court and in the year 2021 the Supreme

court dismissed the proceeding filed by the applicants

and the plaint of the applicants was rejected. Despite

the plaint was rejected, the applicants constructed

illegal construction on the disputed plots which was

subsequently demolished by the Nagpur Improvement

Trust in October 2024. After rejection of the plaint by

the Supreme Court, the property became encroachment

free. Both co-owners Prakash Goyal and Om Mittal

visited the site of the plots for taking possession which

was resisted by the wife of the applicant and, therefore,

Shyam Kumar Daulat Barve filed an application

.....5/-

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346 apl357.24

contending that she is causing nuisance and restraining

him from taking possession. The non-applicant No.2

Gittikhadan Police Station, Nagpur took cognizance and

recorded the statements of the relevant witnesses and

submitted report. The statement of the applicant No.2

was recorded. On satisfaction, the Police Inspector of

the said police station submitted report to the Sub

Divisional Officer. The Sub Divisional Officer has issued

notices to the applicants as well as non-applicant No.3

and after due enquiry, initiated the proceedings under

Section 145 of the Code of Criminal Procedure. By the

impugned order, under Section 145 of the Code, both

the parties were directed to maintain status quo. Being

aggrieved and dissatisfied by the said order, the present

application is filed for quashing of the proceeding

under Section 482 of the Code.

.....6/-

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346 apl357.24

3. Heard learned counsel appearing for respective

parties.

4. Learned counsel Shri R.R.Vyas for the applicants

submitted that this application is mainly on the ground

that without hearing the applicant No.1, the said order

was passed. Thus, the order passed by the Sub

Divisional Magistrate is contravening the principles of

natural justice and, therefore, the order passed by the

Sub Divisional Magistrate deserves to be quashed and

set aside. It is further submitted that learned

Magistrate had not considered that it was the applicant

who was in possession and mere filing of the suit is not

sufficient to initiate the action under Section 145 of the

Code and, therefore, the order passed by learned

Magistrate deserves to be quashed and set aside.

5. The application is opposed by learned Additional

Public Prosecutor for non-applicant Nos.1 and 2 on the

.....7/-

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346 apl357.24

ground that at the relevant time, applicant No.1 was

behind the bar and the application was filed against the

applicant No.2. She was duly served with notice and

after filing the reply, to the notice, the application was

decided and on satisfaction by learned Magistrate, the

said order was passed. Considering the nature of the

order, no prejudice would be caused to the applicants.

In view of that, the application deserves to be rejected.

6. The non-applicant No.3 also opposed the

application on the ground that the present application

is filed by applicants jointly who are husband and wife.

The non-applicant No.3 is power of attorney holder of

legal heirs of late Prakash Goyal and Om Mittal. As far

as the contention raised is concerned, that order passed

by learned Magistrate is without hearing the applicants,

the same is not correct. He also challenged filing of the

application under Section 482 of the Code as remedy is

.....8/-

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346 apl357.24

available to the applicants under the provisions of the

Constitution of India. It is further contended that the

applicant no.2 against whom the application was filed

by non-applicant No.3 was duly served. She filed her

reply, her statement was also recorded, and after

hearing both the parties and considering the various

documents, learned Magistrate passed an order. The

record shows that two suits were filed i.e. RCS

No.4990/2012 and RCS No.5044/2012. RCS

No.4990/2012 was by the applicant No.1 for

declaration and perpetual injunction. The vendor of

the non-applicant No.3 filed an application under Order

VII Rule 11 of the CPC which was rejected by the trial

court. The order of the trial court was challenged

before this court by filing a writ petition which was

allowed and the applicant No.1 challenged the order

before the Supreme Court wherein the Supreme Court

.....9/-

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346 apl357.24

upheld the order of this court rejecting the plaint in

RCS No.4990/2012 in SLP No.29975-29976/2018

dated 20.7.2021.

7. The another suit filed by Om Mittal and Prakash

Goyal bearing RCS No.5044/2012 was on the basis of

sale deed and partition deed executed between the

parties. The non-applicant No.3 contended that the

order of the Supreme Court and filing of the suit by the

co-owners are suppressed by the applicants in the

present application. It is further contended that in view

of sale deed and partition deed executed between the

parties, their ownership on the respective share can be

ascertained. As far as the possession of the applicants

over plot Nos.23A and 24 was not established. The

order of maintaining the status quo was passed in RCS

No.5044/2012. The said order was not challenged.

The names of the applicants and co-owners are already

.....10/-

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346 apl357.24

entered in the city civil record and mutation has been

taken place. The said mutation entries are also not

challenged though the applicant No.2 claims to be in

possession of the dispued plots. The non-applicant

No.3, who is power of attorney holder for Om Mittal

and Prakash Goyal, filed an application and on due

enquiry the order was passed by invoking Section 145

of the Code and no grounds are made out to quash the

proceedings and, therefore, the application deserves to

be rejected.

8. Learned counsel for the applicants reiterated the

said contentions that at the relevant time the applicant

No.1 was behind the bar as offences are registered

against him and no notice was served upon him and he

was not heard. Thus, there is contravention of

principles of natural justice and, therefore, the

proceedings deserve to be quashed. He further

.....11/-

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346 apl357.24

submitted that nothing is recorded by the non-applicant

No.2 as to the breach of public peace due to the alleged

act of applicant No.2 and on that ground also the

application deserves to be allowed.

9. Per contra, learned counsel Shri P.P.Kothari for

the non-applicant No.3 submitted that the application

under Section 482 of the Code is not maintainable as

alternative remedy is available. He submitted that the

application was filed by non-applicant No.3 against the

applicant 2. He submitted that as there was illegal

construction over the disputed portion as well as on

layout road, non-applicant No.3 filed an application

with the NIT. The NIT demolished the illegal

construction. After demolishing the illegal construction,

debris was scattered at the spot. By taking

disadvantage of the same, applicant No.2 attempted to

take forceful possession and, therefore, the application

.....12/-

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346 apl357.24

was filed against her. On receipt of the application,

notice was issued to the applicant No.2 who contested

the application by filing a detailed reply and the

documents which were considered and, therefore, the

order was passed and as such no illegal act is

committed by the non-applicant Nos.2 and 3 and

reasoned order is passed by the authorities. Therefore,

no illegality is committed and a reasoned order is

passed by the authorities. Therefore, no interference is

called for.

10. After hearing both the sides and on perusal of the

documents, it revealed that as far as factual aspect is

concerned, it is not disputed that applicant No.1 was

also purchaser along with Om Mittal and Prakash

Goyal. They have purchased plot Nos.23A , 24, 25 to

29, and 34 and 35A. After purchasing the said

properties, they have distributed the said properties by

.....13/-

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346 apl357.24

entering into one agreement on 18.10.2012 which was

under the nomenclature of partition deed. The recital

of the partition deed show that party Nos.1 to 3 jointly

purchased the plots admeasuring 14922.91 square feet

situated at Shashikant Cooperative Housing Society at

Gorewada in City Survey No.232, khasara No.82/3.

The said deed was executed on 26.6.2012 before the

Sub Registrar Office No.8 at Nagpur. Party Nos.1, 2 and

3 by their mutual understanding had decided to divide

the aforementioned property in three parts. As per the

said partition deed, plot Nos.25 to 27 were allotted to

Prakash Goyal, plot Nos.28, 29 and 34 were allotted to

Om Mittal and plot No.35A admeasuring 4556 was

allotted to the applicant No.1. In view of the said

partition, the names were mutated in the city survey

records. The said mutations are not challenged. It is

further apparent that the applicant No.1 has illegally

.....14/-

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346 apl357.24

constructed over disputed portion and therefore non-

applicant No. 3 filed an application with the NIT. After

issuing of the notice, the NIT demolished the said

construction. In the meantime, the applicant No.1

preferred RCS No.4990/2012 in which the co-owner

Om Mittal and Prakash Goyal filed an application under

Order VII Rule 11 of the CPC for rejection of the plaint.

The order of the trial court rejecting the said

application was challenged before this court and this

court set aside the order and rejected the plaint which

was subject matter before the Supreme Court in SLP

No.29975-29976/2018 and the Supreme Court rejected

the plaint. The another suit bearing RCS

No.5044/2012 was filed by Om Mittal and Prakash

Goyal wherein both parties agreed to maintain status

quo before the court. Therefore, the trial court passed

order directing both parties to maintain status quo.

.....15/-

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346 apl357.24

However, the applicant No.1 had illegally constructed

on plot No.23 A and also on layout road and, therefore,

the construction was demolished.

11. The record further shows that as the Hon'ble

Apex Court rejected the plaint of the applicant No.1,

applicant No.1 was possessing the disputed plots

illegally and unauthorizedly. The non-applicant No.3

filed an application to the Gittikhadan Police Station.

After receipt of the application, notice was issued to the

applicant No.2 and her statement was recorded. The

statements of various witnesses are also recorded and

after recording the relevant statements, report under

Section 145(1) was submitted to learned Magistrate by

the Police Inspector of Gittikhadan Police Station. On

receipt of the said report, show cause notice was issued

to the applicant No.2. In respect of the said notice, she

filed a detailed reply contending her possession over

.....16/-

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the disputed portion. While contesting the said

application, applicant No.2 stated that she is

acquainted with the facts and documents on record and

contested the application. At any point of time, she has

not raised any objections as to the hearing to the

applicant No.1. The applicant No.1 has also not

communicated that hearing is to be granted to him.

Admittedly, due to the dispute between the applicants

and other co-owners, the offence was registered against

the applicant No.1 and he was behind the bar.

12. Learned Magistrate has considered the

application of the non-applicant No.3 and reply filed by

the applicant No.2. He has referred various documents

which are produced by both the parties and concluded

that the Hon'ble Apex Court has rejected the plaint of

the applicant No.1. The ownership of co-owners

appears on a rest of the plots excluding plot No.35A.

.....17/-

Judgment

346 apl357.24

On inspecting the various documents and the

photographs, it also observed that the applicant No.2

could not produce any document to show that she was

in possession of the disputed land and directed both the

parties to maintain status quo order as per the order of

CJSD wherein the suit was lying.

13. As far as procedure given under Section 145 of

the Code is concerned, sub clause (1) of the said

Section states that whenever an Executive Magistrate is

satisfied from a report of a police officer 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 in

.....18/-

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written statements of their respective claims as respects

the fact of actual possession of the subject of dispute.

Sub-section (3) of the said Section states that 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.

In view of sub-section (4) of the said Section, 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.

.....19/-

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The proviso to the said sub-section states 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 sub-section (1), he may treat the party so

dispossessed as if that party had been in possession on

the date of this order under sub-section (1).

14. In view of the above legal provisions, if the

record of the present case is considered, it reveals that

initially the notice was issued to the applicant No.2 as

well as non-applicant No.3. Various statements were

recorded which considered by the non-applicant No.2.

It further reveals from the statements of the witnesses

that the non-applicant No.3 and some of proposed

purchasers entered into an agreement with Prakash

.....20/-

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Goyal and Om Mittal. In the meantime, the Hon'ble

Apex Court rejected the plaint of the applicant No.1

and, therefore, they affixed the board of their names as

to the ownership of plot Nos.23A, 24(2), 29, and 34.

On the second day, they witnessed that the board of

their names was removed and they were restrained

from coming to the plots and also threatened them by

the applicant No.2. On the basis of the said statement,

learned Magistrate recorded his satisfaction that there

is likelihood of breach of peace and directed both the

parties to maintain status quo. After careful

examination of the complaint and the documents, the

dispute was raised regarding the possession and title of

the said disputed properties. An attempt was made to

dispossess the original owners. Admittedly, mere

apprehension of danger to the peace is not sufficient

but considering various litigations, the applicant No.1

.....21/-

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was prosecuted and learned Magistrate came to the

conclusion that both parties to maintain the status quo

which would be helpful to avoid breach of peace and,

therefore, invoked jurisdiction under Section 145 of the

Code.

15. The ground raised by the applicants is that no

hearing was given and thus there is contravention of

principles of natural justice. It is fundamental to fair

procedure that both sides should be heard and it is

often considered that it is broad enough to include the

rule against bias. One of the essential ingredients of

fair hearing is that a person should be served with a

proper notice, i.e., a person has a right to notice. Notice

should be clear and precise so as to give the other party

adequate information of the case he has to meet and

make an effective defence. Generally, a notice to be

adequate must contain (a) time, place and nature of

.....22/-

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346 apl357.24

hearing; (b) legal authority under which hearing is to

be held; (c) statement of specific charges which a

person has to meet.

16. In the present case, material on record shows

that non-applicant No.2 has furnished with details and

opportunity was granted to file her written submissions

also. Thus, as far as fair hearing is concerned, the same

is not available to the present applicants.

17. The applicant No.2 at any point of time has not

raised the objection that as her husband is the owner of

the disputed property, he is to be heard. On the

contrary, her reply shows that she is acquainted with

the facts of the matter and she be permitted to file her

reply which was permitted.

18. By this application, the applicants are invoking

inherent jurisdiction under Section 482 of the Code.

.....23/-

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19. Section 482 of the Code does not confer any new

power on the High Court. It only saves inherent

powers which the court possess. It envisages three

circumstances under which the inherent jurisdiction

may be exercised, namely (i) to give effect to an order

under the Code, (ii) to prevent abuse of the process of

Court, and (iii) to otherwise secure the ends of justice.

Therefore, it is not desirable to lay down any rule

which would govern the exercise of inherent

jurisdiction. Therefore, inherent powers which are

necessary for properly discharge of functions and duties

imposed upon them by law to be exercised by the

courts. All courts, whether civil or criminal possess, in

the absence of any express provision, as inherent in

their constitution, all such powers as are necessary to

do the right and to undo a wrong in course of

administration of justice on the principle that when the

.....24/-

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law gives a person anything it gives him that without

which it cannot exist.

20. Thus, while exercising powers under the said

Section, the court does not function as a court of appeal

or revision. Inherent jurisdiction under the section

though wide has to be exercised sparingly, carefully and

with caution and only when such exercise is justified. It

is to be exercised to do real and substantial justice for

the administration of which alone the courts exist. It

would be an abuse of process of the court to allow any

action which would result in injustice and prevent

promotion of justice.

21. Thus, when no offence is disclosed, the court

may examine question of fact, but when offence is

revealed, the court should be slow in invoking the

powers under Section 482 of the Code.

.....25/-

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22. By applying the above principle to the present

case, learned Magistrate rightly considered the aspect

of likelihood of breach of public peace and rightly

directed both the parties to maintain status quo.

Considering the the Hon'ble Apex Court has rejected

the prayer of the applicants for setting aside the order

passed by this court rejecting the plaint, an attempt was

made to take forceful possession of the disputed lands

and the statements of the witnesses disclose the

manner in which the said attempt was made.

Moreover, both the parties committed before the trial

court to maintain status quo, but the applicants have

contravened the said commitment made before the

court and attempted to take forceful possession of the

disputed lands which is sufficient to infer the intention

of the applicants and likelihood of committing breach

of peace.

.....26/-

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23. In this view of the matter, as I do not find any

merits in the application, the application deserves to be

rejected and the same is rejected.

The application stands disposed of.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede ...../-

Designation: PS To Honourable Judge Date: 27/01/2025 10:44:30