Ashok Kumar Vajpai vs State of Haryana

V.K. Jhanji, J.

In this petition under Section 482 Cr.P.C. prayer made is for quashing of Kalandra dated 9.1.1995, Annexure P5, and the subsequent proceedings including order dated 10.1.1995 vide which the Sub Divisional Magistrate, Kurukshetra, has attached the house in dispute and S.H.O. P.S. Thanesar, has been appointed as Receiver.

The dispute is in regard to the property, i.e. five shops in occupation of tenants, i.e. property No. 974, 975, 976, 977 and 978 which partly is in possession of petitioner and partly in possession of respondent No. 3 This property originally belonged to one Moti Lal. On his death, the petitioner staked his claim to the property on the basis of registered Will whereas respondents 3 to 5 staked their claim to the property on the basis of an unregistered Will and also on the basis of inheritance. It is the admitted case of the parties that property Nos. 974 to 978 are in possession of tenants and property No. 979 is partly in possession of petitioner and partly in possession of respondent No. 3. On an application submitted by respondent No. 3, a Kalandra was prepared by the S.H.O. PS Thanesar in which it was stated that petitioner can raise dispute at any time over the property in dispute and as such, the property be attached so that peace may not be disturbed between the parties. On receipt of Kalandra dated 10.1.1995, the SubDivisional Magistrate, Kurukshetra, on that very day, after hearing the complainant and on going through the Kalandra, was prima facie satisfied that the property in dispute is a bone of contention between the parties and peace can be disturbed at any time over the possession. He, therefore, proceeded to attach the property under Section 145 Cr.P.C., except the portion in which respondent No. 3 was residing and appointed S.H.O. Thanesar as Receiver. The S.H.O. was directed to take possession of the property forthwith so that possession thereof could be restored to the concerned person.

Initiation of proceedings under Section 145 Cr.P.C. and appointment of Receiver has been challenged in this petition on the grounds: (1) that no opportunity of hearing was given to the petitioner before the property was attached; and (ii) that no proceedings under Section 145 Cr.P.C. or any order under Section 146 Cr.P.C. could be initiated/passed when the matter is pending before the Civil Court and the Civil Court has granted stay in favour of the petitioner.

In response to notice of petition, respondents 3 to 5 have filed written statement in which they have stated that the SubDivisional Magistrate initiated the proceedings in view or apprehension of breach of peace and due to emergency, passed order under Section 146 Cr.P.C. for attachment of house and appointed a Receiver in accordance with law. It has also been stated that proceedings under Section 145 Cr.P.C. in the civil suit can continue simultaneously especially when there is an apprehension of breach of peace. In this regard, counsel for the respondents has cited judgments in Mohinder Singh v. Dilbagh Rai, 1976 P.L.R. 803, Manjit Singh v. State of Punjab, 1994(1) RCR 320 and Ujjagar Singh v. SubDivisional Magistrate, Malerkotla, 1994(1) RCR 393 .

After hearing the learned counsel for the parties at length, I am of the view that there is no substance in the first contention of counsel that initiation of proceedings under Section 145(1) Cr.P.C. and the order passed under Section 146 Cr.P.C. is bad as no opportunity of hearing was given to the petitioner before the property was attached. It is apparent from a reading of Sections 145 and 146 Cr.P.C. that if at any time after making the order under Section 145(1), the Magistrate considers the case to be one of emergency or if in the enquiry under subsection(4) of Section 145 the Magistrate decided that none of the parties was in actual possession of the property in dispute on the date of preliminary order or if the Magistrate is unable to satisfy himself as to which of the parties was in possession, he is empowered to attach the property. No hearing is required to be given when the case is one of emergency. In regard to second submission of counsel, there is no dispute with the law laid down in the judgments cited by learned counsel for respondents that proceedings under Section 145 Cr.P.C. cannot be dropped merely on the ground of pendency of civil suit, but it is equally settled that when civil litigation is pending qua the property wherein question of possession is involved and has been adjudicated, the initiation of parallel criminal proceedings under Section 145 Cr.P.C. are not justified. Admittedly, the day the SubDivisional Magistrate passed the order attaching the property, the Civil Court also on finding a primafacie case for grant of temporary injunction, restrained Radhey Shyam, defendant, and his sons namely Arun Kumar, Vinod Kumar and Vipan Kumar from interfering in the possession of petitioner over the property in dispute. If both the orders, i.e. order of the SubDivisional Magistrate attaching the property and the order of the Civil Court restraining Radhey Shyam and his sons from interfering in possession of petitioner, are allowed to operate, there would be two inconsistent orders which would create an anomalous situation. It is also not disputed that order of injunction is continuing till date and has not been modified and therefore, the order of Civil Court has to take precedence over the order of SubDivisional Magistrate. It makes no difference if determination by the Court is not final and tentative. It has been held by the Apex Court in Dharampal and others v. Ramshri and others, 1993(1) RCR 696 as under :

"It is obvious from subsection (1) of Section 146 that the Magistrate is given power to attach the subject of dispute ''until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.'' The determination by a competent court of the rights of the parties spoken of there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subjectmatter of the dispute pending the final decision in the suit. The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end, otherwise, there will be inconsistency between the order passed by the civil Court and the order of attachment passed by the Magistrate. (Emphasis mine). The proviso to sub section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute." When a Civil Court passes an order of injunction or receiver, it is the civil Court which is seized of the matter and any breach of its order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute."

As noticed, the Civil Court is seized of the matter and has passed order in favour of the petitioner by virtue of which respondents have been restrained from interfering in possession of the petitioner and therefore, initiation of proceedings under Section 145 Cr.P.C. and the order attaching the property is not justified and thus, liable to be quashed. It is, however made clear that the respondents shall be at liberty to seek any appropriate order from the Civil Court including a direction to the tenants to deposit the rent in Court till the decision of suit.

Consequently, this petition is allowed and proceedings under Section 145 Cr.P.C. initiated vide order dated 9.1.1995 (Annexure P5) of Sub Divisional Magistrate, Kurukshetra and order dated 10.1.1995 (Annexure P6) appointing S.H.O. PS Thanesar, as Receiver are quashed. No costs.