Babu Ram And Ors. vs Sdm Shahdara And Ors.
1990 Latest Caselaw 438 Del

JUDGMENT

V.B. Bansal, J.

(1) In this petition under Sec. 482 of the Code of Criminal Procedure (for short the Code) prayer has been made by the petitioners for quashing the proceedings under Ss. 145/146 of the Code pending in the court of Sdm Shahdara in respect of land measuring about 1000 sq. yds out of Khasra No. 13/4 in village Kotla, Shahdara.

(2) In brief the facts leading to the filing of this petition are that Bharat Singh respondent No. 4 on his own behalf arid on behalf of Harijans of Village Kotia moved an application to the S.H.O., Police Station Trilok Puri slating therein that the disputed land was given to the Harijans for construction of Panchalyatghar and Badle and others have been trying to take forcible possession of this land. request was made that Badle and others may be stopped from making any encroachment and to avoid any untoward incident. After enquiry a report was submitted by S.H.Q. P.S. Trilokpuri to the Sdm Shahdara. It was, inter alia, stated that land bearing kharsa No. 13/4 was lying vacant in village Kotla and towards its North there was the house of Bharat Singh while towards South there were the rooms of Babu s/o Badle and towards West there was a gali and some houses. It was further stated that the Harijans have been claiming that this land was given to them for the construction of a religious place while Badle and others have been claiming to be in possession of the same and that there is a dispute between the parties. It was also stated therein that an apprehension of breach of peace was imminent.

(3) Learned Sdm after perusal of the report and the complaint of Bharat Singh and after due satisfaction passed an order under Sec. 145 of the Code on 28th February, 1989 and gave notice to the parties requiring them to put in their written statements and documentary proof as to the fact of actual possession of the disputed plot.

(4) On the same date after perusal of the police report and giving a hearing to Bharat Singh, first party, the learned Sdm came to the conclusion that he was satisfied that it was a case of grave emergency and there was an imminent danger of breach of peace between the parties over the possession of the disputed plot and so passed an order under Sec. 146(1) of the Code and thereafter attached the disputed plot.

(5) Learned counsel for the petitioners has submitted that the learned Sdm has exceeded his jurisdiction and there was no occasion for him to initiate the proceedings under S. 145(1) of the Code. He has also submitted that in fact there is a decision of the Court of competent jurisdiction holding that the petitioners have been in possession of the disputed plot and in these circumstances there was hardly and occasion for the Sdm to initiate proceedings. He has referred a copy of the order dated 31st May, 1974 of Shri S.P. Prabhakar, Revenue Assistant, Delhi who passed an order of ejectment under Sec. 86(A) of the Delhi Land Reforms Act against Badle and others in respect of land bearing Khasra No. 13, min. measuring 8 bighas 10 biswas. He has then placed reliance upon order dated 5th October, 1974 of Shri G.C. Srivastava, Addl. Collector, Delhi who accepted the appeal and the order of the Revenue Assistant was set aside. He has also submitted that a revision filed by Gaon Sabha against the order of the Addl. Collector was dismissed by the Financial Commissioner vide order dated 24th November, 1978 and in this way there is a positive finding by the competent court that the petitioners were in possession of the disputed premises. However, it is to be noted that the aforesaid proceedings were in respect of Khasra No. 13, min. measuring 8 big. 10 bis. while the present dispute is in respect of land measuring about 1000 sq. yds. out of Khasra No. 13/4. It is worthwhile to note that unless the petitioners are in a position to satisfy that the present disputed plot forms part of the area covered by the aforesaid litigation they cannot claim any benefit in these proceedings. Moreover, the aforesaid proceedings were of 1974 and the present dispute has started only in February 1989. In proceedings under Sections 145/146 of the Code all that is required to be decided by the Sdm is as to who was in possession of the disputed property on the date of passing the order or within two months prior to the said date. The question of title is not to be gone into in these proceedings which are summary in nature and are taken in order to prevent the breach of peace. I am clearly of the view that it is not open to the petitioners to challenge the proceedings under Sec. 145(1) of the Code by way of an application under Sec. 482 of the Code unless all the facts are brought on record before the Sdm to enable him to exercise his jurisdiction and to come to a conclusion as to whether there is any positive finding by a court of competent jurisdiction so as to debar him from continuing with the proceedings.

(6) Learned counsel for the petitioners has also submitted that the learned Sdm has committed a grave error in passing the order under Sec. 146(1) of the Code without holding any enquiry and without recording a finding that he was not in a position to decide as to who was in possession of the disputed land. A reliance in this regard has been placed on case Daulat All Molla v. Hedail Molla and others . In case Daulat Ali Molla (supra) it has been observed that Sec. 146 Cr.P.C. presupposes an enquiry by the magistrate on the evidence recorded and the object of Sec. 146 is to give the magistrate jurisdiction to attach property if, upon the evidence so recorded, he is unable to come to a finding as to who was in possession on the date on which the order under S. 145 of the Code was drawn up. Similarly, in Radha Raman and another's case (supra) it was held that in order to pass order under S. 146 of the Code it is necessary for the magistrate to come to some finding of his own on the evidence of the parties that he is unable to satisfy himself as to which of the parties was in possession of the subject of dispute. It was further held that S. 146 presupposes an enquiry by the magistrate on the evidence recorded and the object of this section is to give the magistrate jurisdiction to attach the property if he is unable to come to a finding on the evidence so recorded as to who was in possession on the date of the passing of the order or within two months prior to it. I am afraid these judgments are not applicable in the instant case, and cannot be of any help to the petitioners.

(7) It would be appropriate to quote Sec. 146(1) of the Code which runs as under :- "If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it and draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub-section (4) of section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him : Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute."

(8) I have gone through the provisions of the Code of Criminal Procedure, 1898 and also as amended in 1955 as well as the provisions of the present Code. It is worth mentioning that sub-sec. (1) of Sec. 146 of the Code was incorporated as a second proviso to Sec. 144(4) of the Code, 1898 and Sec 146(0 was to the effect that if the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to subject of dispute he can attach it but only a competent court will determine the rights of the parties thereto or the person entitled to possession thereof. It is, thus clear that under the old Act provisions of . 146(1) can come into operation only after the recording of the evidence and at the time of the passing of the final order. The aforesaid two judgments relied upon by the learned counsel for the petitioners, thus, could not be applicable to the facts of the present case. Learned Sdm has exercised the jurisdiction vested in him under Sec. 146(1) of the Code and considering it to be a case of emergency attached the property the possession of which was being claimed by both the parties. The learned Sdm has proceeded in passing the order under Sec. 146 only after assuming jurisdiction to proceed in the matter under Sec. 145 of the Code. It was quite well exercise of jurisdiction and no fault can be found in the procedure adopted by the SDM. I find support for this view from the judgment of the Supreme Court in case Mathuralal v. Bhanwarlal&.Am 1980 C.C. Cases 6.

(9) This Court would interfere in the discretion exercised by the lower court only if there is grave irregularity or miscarriage of justice. In the instant case learned counsel for the petitioners has not been able to make out any such case. Learned counsel for the petitioners has also submitted that the impugned order cannot be sustained since it only reproduces the contents of the application without there being, any application of mind by the learned Sdm and has placed reliance upon the case Ahsan Soft and others v. Sana Mir Air 1958 J & K 17. There could possibly no dispute with regard to the proposition of law that the trial magistrate has to apply his mind and the order under S. 145 must show due application of mind and availability of facts to enable him to have jurisdiction to initiate proceedings under Sec. 145 of the Code. In the instant case a perusal of the order dated 28th February, 1989 under Sec. 145(1) clearly shows that the said order was passed by the trial magistrate only after going through the application, the police report and after duly satisfying himself about the dispute regarding the possession of the plot measuring 1000 sq. yds. This judgment, thus, cannot be of any help to the petitioners.

(10) In view of my aforesaid discussion, I have not been able to find any case for interference with the proceeding by the learned SDM. This petition has no force and has to be rejected.

(11) As a result, the petition is dismissed. Parties are directed to appear before the learned Sdm on 26th September 1990.