Indubhai Patel And Ors. vs State And Ors.
1987 Latest Caselaw 104 Del

JUDGMENT

M.K. Chawla, J.

(1) The question that requires determination in this criminal revision is : Whether an interim order of a Civil Court of competent jurisdiction in a title suit, to maintain the status quo in respect of the disputed property, which is prior in time, can be defeated by an order of Sub- Divisional Magistrate under Sections 145 and 146 of Cr. PC. Even though the proposition appears to be simple but the points raised in the case have made it difficult to answer. To resolve the controversy a few relevant facts need mentioning.

(2) Premises No. 7, Jantar Mantar Road, New Delhi is owned by the Trust called Sardar Vallabh Bhai Patel Samarak Trust. In May, 1977 the Trust let out the western wing of the first floor and the entire ground floor to Janata Party, a national political party at a monthly rent of Rs. 2100. Even since then, the Janata Party is in actual, exclusive and physical possession of the premises under their tenancy. Sometime in the year 1979, with the permission of the Trust, the Janata Party constructed three rooms on the eastern wing of the second floor of the building. This portion was put to use for its Youth Wing known as 'Yuva Janata'. In July, 1982, the national executive of the Janata Party formed a Mass Action Committee for implementing the institutional policies propounded by the party. Swami Agnivesh, respondent No. 2, who was then the Member of the Janata Party was made its convener He was permitted to use the premises of Yuva Janata with its furniture and fixtures and telephone etc. Yuva Janata also continued to function from the said premises. After the organisational election of April/May, 1986, respondent No. 2 ceased to be the Convener of the Mass Action Committee. Swamiji was asked not to use the said premises in any manner and in any capacity.

(3) The Delhi Janata Party held its organisational elections in April, 1986 wherein petitioner No. 3, Shri V.P. Chaudhary was elected as its President. He in turn requested the central office of the party, to arrange for some accommodation for their office. Petitioner No. 4 Shri Indu Bhai Patel, General Secretary of the Janata Party allowed the Delhi unit to occupy and use the premises which previously was in use of the Mass Action Committee. Swamiji respondent No. 2 was duly informed of this arrangement.

(4) It is the case of the petitioners that a meeting of the Executive Committee of the Delhi Pradesh Janata Party was convened at the disputed premises at 7, Jantar Mantar Road on 18-10-1986 at 5 p.m. When the Members of the Executive Committee and other special invitees reached the Venue, they found one clerk-typist sitting in the room. She was informed that the Delhi Pradesh Janata Party was going to hold the meeting in the said premises which were being used as its office. She sought confirmation of the said fact from the permanent Secretary of the Janata Party and after some conversation on telephone with some other person, voluntarily removed the personal files and other articles of respondent No. 2 to the guest room on the ground floor. Delhi Pradesh Janata Party held their deliberations till late in the evening and thereafter put their locks on the premises. This fact was duly communicated by petitioner No. 2 to the S H.O. Connaught Place, New Delhi on the same day. It is the further case of the petitioner that on the report of respondent No. 2, the S.H.O. Police Station Connaught Place, New Delhi submitted a Kalandara under Section 145of the Cr.P.C.in the court, of the Sub-Divisional Magistrate on 20-10-1986, alleging therein that some incident had taken place on 18-10-1986 with respect to the premises and there was apprehension of breach of peace, inasmuch as, respondent No. 2 claims to have been forcibly dispossessed. A request for sealing of the premises was also made.

(5) In the meantime on 23-10-1986, petitioner No. 2 as the General Secretary of the Janata Party and petitioner No 4 as General Secretary of the Delhi Pradesh Janata Party filed a suit for declaration and perpetual injunction in the court of Senior Sub-Judge, Delhi which was assigned to Shri D.K. Malhotra, Sub-Judge, Delhi. In the said suit respondent Nos. 2 and 3 besides others, were imp leaded as defendants. Along with the said suit. the plaintiff also moved an application under Order 39 Rules 1 and 2 of Cpc for the grant of temporary and interim exports injunction restraining the defendants from interfering in the peaceful possession of the rooms in any manner whatsoever. An application under Order 26 Rule 9 Civil Procedure Code for the appointment of a Local Commissioner to inspect the said premises was also moved, with a view to ascertain as to who is in actual and physical possession of the premises. On the said application on the same day, the following order was passed. "HEARD.Notice of the suit and application under Order 39 Rules 1 and 2 to the Respondent vide P.F. dusty Service allowed. Counsel for the Plaintiff has moved an application under Order 26 Rule 9 for appointment of Local Commissioner. Shri Rajeshwar Tiwari, Advocate, present in the court is appointed as Local Commissioner on payment of fees of Rs. 350 (which is paid to him in the court) with the direction to visit the suit property and to find out who is in actual physical possession of the portion marked red in the site plan. Copy of the site plan to be given by the Plaintiff to the Local Commissioner (At this stage, it is supplied to him). He is to prepare a rough site plan according to the site and to start his proceedings after giving notice to the other party if present on the spot. He is to submit his report by or on 7-11-1986. Parties are directed to maintain status quo, in respect of possession of the suit property in terms of the report of the Local Commissioner. Order of status quo will be operative from the time the Local Commissioner visits the suit property. Plaintiff to comply with Order 39 Rule 3."

(6) In compliance with the directions, Shri Rajeshwar Tiwari, the Local Commissioner visited the Suit property at 1. 10 p.m. on the next date. Due notice was given to the respondents before carrying on the inspection. The Local Commissioner submitted his report on 25-10-1986 to the effect that the Janata Party was in actual physical possession of the said premises. A copy of the order of the civil court was duly served on the respondents. This fact was also brought to the notice of the S.H.O. of the area.

(7) Shri Ravi Malik, S.D.M., New Delhi, on the basis of the Kalandara, called upon the parties to appear before him on 24-10-1986 in order to decide, as to whether any action under 145 of the Cr. P.C. be taken or not. As some of the parties were not served, the matter was adjourned to 4-11-86. On that date, the petitioners brought to the notice of the learned S.D.M. that Civil Court is already seized of the matter and the proceedings under Sections 145 and 146 of Cr. P.C. be dropped. Notwithstanding all this, the learned S.D.M. by his order dated 4-11-1986 drew up the proceedings under Section 145(1) of Cr, P.C. and simultaneously passed another order under Section 146(1) of the Code for the attachment of property. The Sho Connaught Place was appointed its Receiver. The Sho, in turn, attached the premises by putting seals on the locks of the Janata Party. It was so done at about 10.45 p.m. on 4-11-1986. The S.H.O. submitted the compliance report to the learned S.D.M.

(8) The stand of the respondent, on the other hand, is that Swami Agnivesh had taken possession of the three rooms on the Western wing of the second floor of the building in question sometimes in March, 1982. He started operating his office of Bandhua Mukti Morcha, Rashtriya Khan Mazdoor Union, Nirman Mazdoor Union and various other connected organisations. From July, 1982 he became the Convener of Mass Action Committee, and continued to discharge its obligations/functions from the said premises. For the date of incident, the case of the respondent is that on 18-10-1986, the petitioners acted in a highhanded manner and he was illegally dispossessed from the premises. All his cash, valuables, files and documents were thrown on the road. Miss Nishi Jain, an employee of Swamiji was forcibly pushed out of the room. On the same day, at about 8.50 p.m., a report was lodged with the Police. On that basis, the Police initiated proceedings under Section 107/150 Cr. Pc against both the parties. The learned S.D.M. on the basis of the kalandara of the S.H.O. passed an order under Sections 145(1) and 146 of the Cr. Pc on 4-11-1986. This order is in consonance with the situation prevailing at that time. The order is proper, just and legal and does not call for any interference.

(9) Even though the parties have not come out with the complete facts, but for the purpose of deciding the present controversy, the following facts are not in dispute :

(10) Till 18-10-1986, respondent no. 2. Swami Agnivesh was in occupation of the disputed premises, from where he was directing his various political and social activities. On that day at about 5 p.m., the petitioners occupied the premises with the consent of the lady typist, and without any opposition from any quarter. However, late in the night, respondent filed a report with the area Police alleging their illegal and forcible dispossession from the premises in question. On 20-10-1986, another report in this behalf was lodged. The S.H.O. Police Station Connaught Place, New Delhi filed the kalandara in the Court of the S.D.M., New Delhi. However, before any order in his direction was passed, the petitioners on 23-10-1986 succeeded in obtaining the order of maintaining the status quo from the Civil Court. Its information was duly conveyed to the respondent, as well as the concerned S D.M. Inspite of the pendency of the injunction of the civil court, the learned S.D.M. vide order dated 4-11-1986 drew up the proceedings and got attached and sealed the property through the S.H.O. of the area. This very order is under challenge in the present revision petition.

(11) On these facts, this Court has to choose any of the two options : either to direct the S.D.M. to have due regard to the orders of injunction of the Civil Court covering the subject-matter or in the garb of preventing the breach of peace, allow him to start or continue the proceedings or pass orders under Sections 145/146 Cr. PC.

(12) Previously, the law on the subject was not settled, inasmuch as, in Malkappa v. Padmanna, Air 1959 Mysore 122, it was noted that some courts have taken the view that although it may not be proper for a Magistrate to act under Section 145 Cr. Pc the mere pendency of civil litigation will not oust the jurisdiction of a Magistrate to proceed under Section 145 Cr. Pc Thr Court, however, preferred to rely upon the first option by holding that provisions of Sections 145/146 Cr. Pc should not be invoked when civil litigation about the identical subject-matter is actually pending. This ratio was later on followed in Des Raj & Ors. v. Satpal alias Satnam & Ors., 1973 Clr 223. In this Judgment, Pattar, J. again referred to and discussed in detail the rival views but ultimately preferred to follow the authority of Mysore High Court by giving good reasons in these words : That Section 145 Cr. Pc enjoins upon the Magistrate a certain duty and that duty is to see that the parties who have a civil dispute do not take the law into their own hands and commit breach of peace. The duty is to see that the parties actually go to a civil court and not fight about the land. If the parties have already gone there, the Magistrate bad no longer any duty to perform. If the criminal courts should start parallel proceedings in respect of a matter which is pending before a Civil Court, I have no doubt that it will have the effect of undermining the respect for the authority of civil courts with the result that the very object of Section 145 will be defeated. When, therefore, there is a choice between Section 145 and Section 107, before a Magistrate, by reason of the pendency of civil litigation, it seems to me perfectly obvious that he must choose Section 107 and not Section 145 Cr. PC."

(13) The above said decision was accepted and confirmed by Gurnam Singh, J. in Bhan Singh & Ors. v. State of Punjab & Ors., 1976 Clr, The next judgment in the series is reported as Ramaswami Pilley & Ors. v. Inspector of Police, Vellur Namnakkal Taluk, Salem District & Ors., 1979 Law Weekly Criminal (Madras). On similar facts as the case in hand, it was held that an order under Section 146 Cr. Pc is conceivable only in the absence of an order by a competent court binding as between the parties to the proceedings. When a civil court is seized of the matter and has passed an order of interim injunction restraining 'A' party from interfering with the possession of the Suit properties which are the same as the properties in dispute, the executive magistrate will not have jurisdiction to pass order under Section 14 Cr. PC. An order of injunction passed by a competent civil court is binding as between the parties to the proceedings. The order directing attachment and appointment of Receiver in this case was set aside. The judgment is independent of the rule laid down in the Mysore and Madras High Courts (supra) who have come to the same conclusion with reference to the proceedings under Section 146 Cr. Pc qua injunction issued by the civil court. The Bombay High Court in case Raghunath Kulaba Chawan & Ors. v. Dattatraya Keshav Rao Chawan and Ors., 1980 Bombay Cr 897 went a step further by holding: "THE above facts would show that orders for attachment under Section 146 of Cr. Pc was passed by the Magistrate during the continuance of order of injunction in the suit which is still pending. As the civil court was seized of the matter, the Executive Magistrate could not pass an order as to nullify the interim injunction granted by a civil court. The scheme of provisions of Sections 145 and 146 Cr. Pc shows that orders passed by the Executive Magistrate should be subject to orders passed by Civil Court. The impugned orders of attachment are clearly without jurisdiction. The Magistrate could not have passed an order under Section 145 of Cr. Pc on the specious ground that there was likelihood of breach of peace."

(14) The next authority that deals with the same question as referred to in the Bombay High Court Judgment is reported as Sardari Lal and Ors. v. State of Punjab and Ors., (Criminal) Law Journal, 1151. The legal proposition which met the approval of the court is that once a party initiates a civil suit for injunction and obtains an interim order to maintain status quo, which is an operation, the initiation of proceedings under Section 145 Cr. Pc was not called for. At best, if there was likelihood of breach of peace, the Sub-divisional Magistrate should have proceeded against the parties, under Section 107 Cr. PC. Admittedly, the question as to which of the parties was in possession of the land in question, was the subject matter in a Civil Court as well, and the present proceedings before an Executive Magistrate could not be initiated as a substitute thereof. This very view was again confirmed in 1983 (2) Chandigarh Law Reports, 197 and 1985 Chandigarh Criminal Cases, 250.

(15) From the perusal of the authorities referred to above, it can safely be said that in fact there were no two views, as tried to be brought out in the earlier Mysore authority, inasmuch as the latter view was never followed. However, if there was any controversy, the same was laid at rest by the Judgment of Ram Sumer Puri Mahant v. State of V.P. and Ors., . While construing the effect of pendency of civil litigation at the time of the initiation of proceedings under Section 145 Cr. Pc it was observed as. under: "WHEN a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings under Section 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties not should public time be allowed to be wasted over meaningless litigation."

After this judgment, no scope is left with this Court to allow the parties or the learned Sdm to continued the proceedings or pass any order under Sections 145 and 146 Cr. Pc and if there exists any such order there to nullify its effect. Learned counsel for the respondents have not been able to rely upon any decision by any other court contrary to the later Judgment of the Supreme Court. Rather this very view has been confirmed and reconfirmed by the following amongst other judgments : 1. 1986 (1) Crimes 143 2. 1986 (1) Crimes 224 3. 1986 (1) Chandigarh Law Reports 65 4. 1985 (2) Recent Criminal Reports, 436 5. 1986 (2) Crimes 380 6. 1986 Chandigarh Criminal Cases 406 7. 1985 (2) Chandigarh Law Reports 669

(16) The following judgments are the authorities for the proposition that, inspite of the order of stay of dispossession by the civil court, there exists a likelihood of breach of peace, it would be more appropriate for the Magistrate to deal with the situation under Section 107 Cr. Pc and not to proceed further to pass any orders under Section 145/146 Cr. PC. 1986 (2) Recent Criminal Reports 385, 1986 (2) Recent Criminal Reports 413, 1986 (2) Recent Criminal Reports 425, 1986 (2) Recent Criminal Reports 559, 1987 (1) Recent Criminal Reports 50, 1987 (1) Recent Criminal Reports 191, 1987 (1) Recent Criminal Reports 195

(17) Learned counsel for the respondent made earnest effort to distinguish the present case from the ratio descend of the Judgments referred to above. He raised three propositions, namely :

(I)that the satisfaction of the Magistrate final on facts ;

(II)that the Magistrate will take cognizance of the position existing two months prior to the date of incident ; and

(III)the civil court proceedings will not take precedence over criminal proceedings.

(18) In support of this proposition, learned counsel placed reliance and referred to the case reported in R.H. Bhutani v. Miss M.J. Desai & Ors . "THE satisfaction under Sub-section (1) of Section 145 is of the Magistrate. The question whether to the materials before him, he should initial proceedings or not is therefore, in his discretion which, no doubt, has to be exercised the accordance with the well recognised rules and law in that behalf. No hard and fast rule can therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the Sub-section is clear and the ambiguous that he can arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate."

(19) Besides that the contention of the counsel is that after the respondent has been forcibly and wrongfully dispossessed from the disputed premises, the petitioners cannot be allowed to take advantage of their own wrong under the cover of an interim order of the civil court, to remain in illegal occupation. In allowing this situation to continue, the court will be encouraging the wrongdoer and depriving the deserving party of his claim to the possession. By this act, the petitioners have tried to forestall the learned S.D.M. to proceed in the matter which he was duty-bound. This court should not stand in the way of the Magistrate to proceed further in order to prevent the breach of peace in the area.

(20) The argument of the first impression appeared to be of some substance but if one goes deep into the matter, one finds it to be without foundation. It simply overlooks the existence of an order of a competent civil court, requiring the parties to maintain the status quo till the disposal of the title suit. It may be that in proceedings under Section 145/146 of the Code, the satisfaction of the Magistrate is final on facts, but this finality is subject to his jurisdiction to move in the matter. The existence of an order of injunction of a civil court creates a complete bar to the passing of any order under Section 145/146 Cr. Pc subsequently. This finality is attached if the order is just, proper and legal in the circumstances of a particular case. The S.D.M. cannot be allowed to travel beyond the narrow compass of his powers under Cr. Pc vis-a-vis the orders of a competent civil court. In none of the cases cited at the Bar, it has been held that the criminal proceedings were allowed to take precedence over the orders of the civil court concerning the same subject-matter and between the same parties.

(21) Even the final order that is contemplated under section 145/146 is intended only as a stop-gap arrangement. The ultimate objective undoubtedly is to compel parties to place their dispute before a civil court and to get a proper adjudication on their rights to immovable property. When the parties have already gone to the civil court and the civil court is already seized of the matter, it seems to me that there is no longer any scope for invoking Section 145 Cr. PC.

(22) In this case, it may be that the S.H.O. Police Station Connaught Place, submitted the kalandara on or before 20-10-1986 before the learned S.D.M. but unfortunately he did not immediately act in the matter presumably on the assumption that there was no serious apprehension of breach of peace. He simply issued notice to the other party. Before any meaningful progress in the kalandara could be made, the petitioner succeeded in obtaining an ad interim injunction restraining the respondent from interfering in their peaceful possession of the premises in dispute. It was only on the receipt of the copy of this order, the respondent impressed upon the S.D.M. to seal the property. Learned S.D.M. then realised the urgency of the matter and without allowing the parties any adequate opportunity of leading evidence or hearing arguments, as originally the intention was, he came to the conclusion that there exists a dispute involving immovable property which could cause apprehension of breach of peace, 8y passing the impugned order, the learned S.D.M. has travelled beyond his jurisdiction inasmuch as he ignored the well settled principle of law laid down by the various High Courts and the Supreme Court which gives precedence to orders of the civil court over the orders of the S.D.M. His parallel proceedings under no circumstances can be allowed to continue. Once during the enquiry proceedings under Section 145 Cr. Pc it is brought to the notice of the criminal court that there is an order of the civil court in regard to the possession even by way of interim injunction, the same should be given due weight. It hardly makes any difference whether the order of the civil court was passed before or after the initiation of the proceedings under Section 145, but certainly it was in existence much before the passing of an order under Section 146 Cr.PC. Under these circumstances, the best course then available to the learned S.D.M. was to drop the proceedings initiated under Section 145 and take recourse to the proceedings under Section 107 Cr. PC.

(23) In view of the above circumstances, it is difficult for this court to ignore the well settled proposition of law as detailed above and allow the S.D.M. to by pass the same in the garb of making out a case of emergency warranting attachment. The result is obvious. I accept the revision petition and quash the impugned orders of the learned S.D.M. dated 4-11-1986, under Sections 145 and 146(1) of Cr.PC. The parties shall settle their scores in title suit pending before the Civil Court.