Nimish Agrawal vs State Of Chhattisgarh
2021 Latest Caselaw 3768 Chatt

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                                                                              AFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR

                    Reserved for Order on : 28.10.2021

                      Order Passed on : 17/12/2021

                          CR.M.P. No. 898 of 2018

Nimish Agrawal, S/o. Shri Sunil Agrawal, aged about 37 years, R/o. 1/45,
Nehru Nagar (East), P.S.- Supela, Bhilai, District- Durg, Chhattisgarh.

                                                                     ---- Appellant

                                   Versus

1.    State of Chhattisgarh, Through- Station House Incharge, Police
      Station Bhilai Bhatti, Bhilai, District- Durg, Chhattisgarh.

2.    The Sub Divisional Magistrate, Bhilai Nagar, District- Durg,
      Chhattisgarh.

3.    (Inder Kumar Suri) Deleted As Per Honble Court Order Dated 02-09-
      2021

4.    Alok Suri, S/o. Shri Inder Kumar Suri, aged about 28 years, R/o- C-
      1/25, Junwani, Chauhan Town, P.S.- Supela, Bhilai, District- Durg,
      Chhattisgarh.

                                                             ---- Respondents

For Petitioner : Mr. B.P. Sharma, Advocate with Mr. Manay Nath Thakur, Advocate

For Respondents/State No.1 & 2: Mr. Rahul Jha, Govt. Advocate

For Respondent No.4 : Ms. Sharmila Singhai, Sr. Advocate with Mr. Kanwaljeet Singh Saini, Advocate

Hon'ble Shri Justice Rajendra Chandra Singh Samant

C A V Order

1. This petition under Section 482 of Cr.P.C. has been brought with

prayer to quash the entire proceeding in Case No. 87 of 2017,

pending before the respondent No.2, which has been initiated under

Section 145 of Cr.P.C.

2. It is submitted by the learned counsel for the petitioner that the

impugned proceeding against the petitioner is totally unlawful and

baseless. There is no ingredients present in the case to proceed

against the petitioner under the provision of Section 145 of Cr.P.C.

The dispute is regarding a shop, situated at Civic Centre, Bhilai,

which was initially allotted to late Laxmi Narayan Agrawal. Later on

after the family arrangements, the shop was allotted to Anil Agrawal,

who in turn has handed over the shop to Mr. Inder Kumar Suri under

the power of attorney. Respondent No.4, who is the son of Inder

Kumar Suri has been unable to take possession of the shop in

question as the petitioner and Sunil Agrawal have raised dispute, on

this basis, the proceeding was initiated under Section 145 of Cr.P.C.

3. It is submitted by the learned counsel for the petitioner that there is

already a civil dispute present between the petitioner and the Anil

Agrawal regarding which, civil suit No.63-A/2016 has been filed

praying relief of declaration regarding entitlement for the possession

of the shop in dispute and for the permanent injunction to protect the

possession of the petitioner. The defendants No.1 in that suit

preferred an application under Order 7 Rule 11 of C.P.C.. The trial

Court allowed the application and returned the plaint for presentation,

before the proper Court under the provisions of Section 7 Rule 10 (2)

of C.P.C.. The petitioner has preferred an appeal against that order,

which is pending. It is submitted that Inder Kumar Suri, to whom the

shop has been transferred by Anil Agrawal has submitted affidavit,

before the respondent No.2, S.D.O. making a statement that shop

No.7 has been sold by Anil Agrawal to respondent No.4 on

14.03.2016, in which the petitioner and his father Sunil Agrawal both

are raising dispute because of which, one FIR has been lodged

against the petitioner and his father in Police Station- Kotwali for

offence under Section 294, 323, 506 B of the Indian Penal Code.

Similar statements have been made on affidavit by the respondent

No.4. The petitioner has also submitted affidavit contesting the claim

of the respondent No.4 and Inder Kumar Suri. The petitioner and his

father has preferred a revision No.87 of 2017 against the initiation of

proceeding under Section 145 of Cr.P.C., before the Court of

Additional Sessions Judge, Durg, which has been dismissed by order

dated 27.06.2017. It is submitted that according to the agreement of

license for the shop, which is filed by the respondent No.3 and 4 as

Annexure R-3-1, the license was granted by Steel Authority of India

to Anil Kumar Agrawal and Sunil Kumar Agrawal. There is clear

condition under Clause 22 of the agreement that licensee is not

empowered to sublet the plot/shop nor enter into partnership with any

other person. Neither he can assign or transfer the ownership or

possession of the shop or the shop. Hence, on this basis, the

respondent No.3 and 4 never had any entitlement over the shop on

the basis of the transaction between them and Anil Kumar Agrawal.

4. It is submitted that Section 56 of the Easement Act, 1882 also

provides that the license can not be transferred unless there is clear

and express or implied intention present in the agreement. The

agreement for transfer/sale between Anil Agrawal and respondent

No.4, which is filed as Annexure R-3-3 is unlawful and against the

terms of license agreement. Reliance has been placed on the

judgment of Supreme Court in Suraj Lamp And Industries Private

Limited Through Director Vs. State of Haryana & Another,

reported in (2009) 7 SCC 363 on the point of invalidity of the sale

agreement. Reliance has also been placed on the judgment of

Supreme Court in the second case of Suraj Lamp And Industries

Private Limited (2) Through Director Vs. State of Haryana &

Another, reported in (2012) 1 SCC 656 on this ground that the

agreement of sale does not transfer any title to the respondent No.4.

Further reliance has been placed on the judgment of Supreme Court

in the case of Maria Margarida Sequeira Fernandes & Others Vs.

Erasmo Jack De Sequeira (dead) Through L.RS., reported in

(2012) 5 SCC 370, in which it has been held that a suit by caretaker

praying for injunction against owner of the title holder of the property

is not maintainable. It is submitted that the petitioner is in possession

of the disputed property and the dispute that is present can be

decided only by the Civil Court, therefore, the proceeding under

Section 145 of Cr.P.C. are not maintainable, which is liable to be

quashed.

5. Learned State counsel on behalf of the respondents No.1 and 2

opposes the submissions, submitting that Istagasa submitted before

the respondent No.2 under Section 145 of Cr.P.C. is the correct

procedure under the circumstances at present. Three preliminary

orders were passed subsequent to which, the proceeding is standstill

in which no final order has been passed till today. However, the plaint

of the civil suit filed by the petitioner has been returned, therefore,

there is no civil litigation in existence. Therefore, the proceeding

under Section 145 of Cr.P.C. is maintainable and that can not be

interfered with by this Court. Placing reliance on the judgment of

Supreme Court in case of Jhummamal @ Devandas Vs. State of

M.P. & Ors., reported in (1988) 4 SCC 452, in which it has been held

that any order passed under Section 145 of Cr.P.C. can not be

declared to be nullity only for the reason that unsuccessful party has

approached the Civil suit. Therefore, the proceeding under Section

145 of Cr.P.C. is maintainable. Hence, this petition be dismissed.

6. Learned Sr. counsel appearing on behalf of the respondent No.4

vehemently opposes the submissions made by the learned counsel

for the petitioner and submits that there is no civil litigation present.

The plaint of the civil suit filed by the petitioner has been returned

under Order 7 Rule 10 (2) of C.P.C. by order of the Civil Court dated

17.04.2017. Miscellaneous appeal No.21/2017, preferred against this

order has been disposed off by order dated 10.05.2018, by which,

the appeal was dismissed and the order of the trial Court was

confirmed. The petitioner has challenged the initiation of the

proceeding under Section 145 of Cr.P.C. in the revision petition No.

87 of 2017, in which, also has remained unsuccessful. The petitioner

has applied for the allotment of the disputed shop and has filed

application before the respondent No.1 for the allotment of shop,

which is under consideration. Further the petitioner has participated

in the proceeding before the respondent No.2 and as there is no civil

litigation proceeding, therefore, the only issue present is of

possession, which can be determined only under the provisions of

Section 145 of Cr.P.C. Reliance has been placed on the judgment in

case of Shanti Kumar Panda Vs. Shakuntala Devi ,reported in

(2004) 1 SCC 438 and it is submitted that the dispute regarding

possession present between the parties is determinable only under

the provisions under Section 145 of Cr.P.C.. Reliance has also been

placed on the judgment of Supreme Court in case of Rajpati Vs.

Bachan & Another, reported in (1980) 4 SCC 116 and on the

judgment passed by this Court in Cr.R. No.532 of 218 between

Rekhlal & Ors. Vs. Dharmendra Kumar and one another, decided

on 27.09.2019.

7. I have heard the learned counsel for the parties and perused the

documents placed on record filed alongwith the petition and the reply

filed by the respondents side.

8. Section 145 of Cr.P.C. is relevant, which is as follows :-

"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 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 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 sub- section (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."

9. Sub-section (1) of Section 145 of Cr.P.C. empowers the Executive

Magistrate to entertain the proceeding on the basis of the information

received from a police officer or any other person regarding dispute

of any actual possession. Sub-section (2) describes the property.

Under Sub-section (3) describes procedure. Under sub-section 4 of

Section 145 of Cr.P.C., the Executive Magistrate is empowered to

decide the dispute on merits on the basis of the statement made by

receiving evidence and giving parties opportunity of hearing to decide

as to who is in possession on the date of the order. The proviso to

this sub-section authorizes the Magistrate to hold as to which of the

parties, has been dispossessed within two months, before the report

was made.

10. The main purpose of exercise of powers by the Executive Magistrate

under Section 145 of Cr.P.C. is to determine the possession of one of

the party. The limitation placed in proviso to Section 145 (4) is this

that Executive Magistrate can hold that a party in possession has

been dispossessed within two months prior to the date of information

received. In case, dispossession is beyond two months, then the

authority of Executive Magistrate comes to an end and the authority

of the Civil Court is initiated. Therefore, what is the factual position

that has been determined on the basis of the other material brought

by the parties in this petition. In the copy of Istagasa Annexure P-3,

the SHO of Police Station - Bhilai Nagar has alleged that, as the

shop has been transferred to the respondent No.4 and whenever

respondent No.4 makes attempts to take possession of the shop, the

petitioner and his father both raise dispute for the same. The

preliminary order dated 18.04.2017 (Annexure P-4) mentions

similarly that the petitioner and his father are raising dispute

whenever respondent No.4 has approached to take possession of

the shop. However, in the statement submitted by Inder Kumar Suri

and respondent No.4, it is stated that the possession was received

by them on 14.03.2016, which is date earlier to the date of Istagasa

dated 11.04.2017. This Court will not make appreciation of the

evidence and draw any conclusion regarding the possession of one

of the parties or regarding dispossession of the parties within two

months prior to the date the information was received by the

respondent No.2, therefore, it is the jurisdiction of the respondent

No.2 to enquire and determine has to who is the party, who shall be

treated in possession in accordance with the provisions under

Section 145 (4) of Cr.P.C. Both the parties have made rivals claims

regarding their possession, hence, it is the question of fact, which

can be determined only after the enquiry is made in accordance with

the provisions under Section 145 of Cr.P.C. The claim for entitlement

to continue in possession by the petitioner side and that the petitioner

is the person, who can be treated as person in possession as per

proviso to Section 145 (2) is also subject to determination by the

respondent No.2. Therefore, this Court is of the view that the

satisfaction has been drawn by the respondent No.2 regarding a

dispute present between the parties and that there is necessity of

making an enquiry is a proper conclusion drawn, therefore, I do not

find any illegality in the proceeding initiated by the respondent No.2

under Section 145 of Cr.P.C.

11. In view of the forgoing discussions made here-in-above, this petition

is without any substance, which is dismissed and disposed off

accordingly.

Sd/-

(Rajendra Chandra Singh Samant) Judge Balram