Mohd. Shahid vs Laxmi And Ors.
1989 Latest Caselaw 533 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been brought under Sections 397, 401 read with Section 482 of the Criminal Procedure Code against the preliminary order dated May 25, 1989 made under Section 145 of the Code and subsequent order dated June 2, 1989 made under Section 146 of the Code attaching and sealing the Shop No. 73A, Khan Market, New Delhi and also against the order dated June 23, 1989 by which the application of the petitioner for quashing the proceedings was dismissed.

(2) Facts of the case in brief are that a kalandra under Section 145 of the Code was put in on April 1, 1989 in the Court of S.D.M, New Delhi wherein petitioner was shown as Party No. I and Smt. Laxmi, Radha Krishan and Ram Swaroop were shown as Party No. 2. It was recorded in this Kalandra that the complaints of both the parties have been considered and inquiries have been made and the facts which have come out are that both the parties are disputing about the half back portion of the said shop wherein a Board of Sharma Tailors stands displayed. It was mentioned that northern portion of the said shop stood let out to one Kallu and the southern portion of the shop which has independent entrance from the side lane is in dispute. It was mentioned that this shop stands in the name of Ram Swaroop and Radha Krishan and in the portion of the shop in dispute, Mohd, Umar, father of Party No. 1 was working as,a tailor and on April, 29, 1984, a written agreement was executed between him and the owners by virtue of which he was to pay Rs. 780.00 per month to Smt. Laxmi and Radha Krishan etc. and Mobd. Uproar on the basis of that agreement carried on tailoring work in the said portion and after his death, petitioner has been carrying on tailoring work io that portion and on March 18, 1989 there took place dispute between the two parties and there also occurred scuffle and that Mohd. Shahid, petitioner Parly No. I has the key of the lock and the second party is thinking of removing the lock of the first party and there appears to be lot of tension between the two parties and a Kalandra under Sections 107/150 of the Code already stands filed against them and it was mentioned as there is dispute regarding the said portion of the shop, the same may be sealed till a competent Court decides the dispute. On the basis of this Kalandra, a preliminary order was made by the learned S.D.M. and subsequently the order of sealing was made.

(3) It appears the learned S.D.M. before passing the impugned orders had not cared to go through the statement of Radha Krishan, Party No. 2 dated March 17, 1989. It is evident that if there is a dispute regarding physical possession of the immovable property which is likely to lead to apprehension of breach of peace, the provisions of Section 145 and even of Section 146 could be invoked. These provisions are not meant to be invoked to disturb the settled physical possession of immovable property by a particular party. These provisions could come into play if a settled possession has been disturbed within two months preceding the initiation of proceedings under Section 145 of the Code.

(4) Section 145 of the Code reads as follow

"145. Procedure where dispute concerning land or water is likely to cause breach of peace-

(1)Wherever 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, staling, 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 to 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 of near the subject of dispute.

(4)The Magistrate shall without reference to the merits or the claims of any of the parses 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.

(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 Sub-section (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, be shall issue an order declaring such party to be entitled to possession thereof until evicted the reform 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 proceedings 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 and order for the proper custody or sale of such properly 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 direction 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.

(5) The statement of Radha Krishan which is part of the Kalandra placed before the learned S D.M is quite revealing. It has been mentioned in this statement that earlier be and Mohd. Umar were running the tailoring shop in the said portion and the Board was displayed in his name and the cash memos were also in his name, while Mohd. Umar was his worker but in May 1984 he (Radha Krishna) had become ill and had stopped coming to the shop and an agreement was executed between him and Mohd. Umar by virtue of which Mohd. Umar was to pay him 15% of the income every month 6th or 7th of every month He further stated that due to his illness he stopped coming to the shop and another agreement was executed between him and Mohd. Umar by virtue of which Mohd. Umar started paying him Rs. 26.00 per day and that Mohd. Umar died in November 1984 and thereafter his son Mohd. Nausi started working in the shop and in 1986 petitioner had started working in the Shop He also mentioned that about Rs. 600.00 remained due in respect of the period of Mohd. Umar from the petitioner and that every month his while Laxmi has been getting the money commission and about one and a half month back, his brother's son had requested the petitioner to pay the sum of Rs. 600.00 which was due from his father which petitioner declined to give and thereafter he also approached the petitioner for getting the .commission and petitioner set up the plea that he was a tenant. He also mentioned that no quarrel took place between him and the petitioner and there is no apprehension of any breach of peace and petitioner wanted to establish himself as a tenant and he would take necessary action in Court in accordance with law in that. respect.

(6) If the learned S D.M. had carefully perused this statement of the opposite party, there could have been no occasion for the S.D.M. to have initialed the proceedings under Section 145 or pass an order under Section 146 of the Code. After all it is admitted in this particular statement that prior to the petitioner Mohd. Umar was running the tailoring shop and the opposite party had stopped coming to the shop for a pretty long time and after the death of Mohd. Umar, petitioner has been running the tailoring shop. So, the physical possession of the shop admittedly was with the petitioner since 1986 as stated by Radha Krishan in his statement. So. the petitioner was in setteled physical possession of the shop and question whe ther he was in possession as a licensee or as a tenant could be decided by the civil court. The learned S.D.M. had no jurisdiction to decide such a question in proceedings under Section 145. The moment it was evident that physical possession of the shop has been continuously with the petitioner much prior to two months preceding the filing of the Kalandra under Section 145 of the Code, the learned S.D.M. should have stated her hands and should have declined to initiate the proceedings under Section 145 Criminal Procedure Code . I may mention that a civil suit is pending between the parties where the disputed question between the parties it likely to be decided. In any case I need not go into the question whether pendency of the civil suit by itself was sufficient ground for non-initiation of the proceedings under Section 145 of the Code because in the present case the facts revealed from the statement of Radha Krishan made it clear that no ground existed for initiating the proceedings under Section 1/5 Criminal Procedure Code .

(7) I hence, allow this petition and set aside the impugned orders and quash the proceedings pending before the learned S.D.M. and direct that the possession of the shop be handed over to the petitioner forthwith.