B. Simanchalan vs Basanta Kumar Beberta and Others

S.C. Mohapatra, J.—Refusal to drop two proceedings u/s 145, Code of Criminal Procedure is assailed by the second party member in these two applications. As the parties are the same and point of dispute to be decided is the same in both the applications, they were heard together and are disposed of in this judgment.

On the basis of police report preliminary order was passed On 11.9.1986 in respect of 342 decimals out of 3 acres of land in plot No. 1144. Both the parties were directed not to enter upon the land. On 6.11.1986, the Revenue Inspector, Gurandi was appointed as receiver and was directed to sell the standing crop by auction. On 10.11.1986, in place of Revenue Inspector, Gurandi, such officer of Garabandha was appointed as receiver. Later, it was found that the area is 66 decimals which the Revenue Inspector took charge. Against the order dated 6.11.1986. Petitioner went in revision to the Sessions Judge but ultimately the same was dismissed. On 12.11.1986, first party filed an application for initiation of a proceeding in respect of 2 acres 28 decimals of land in plot No. 1144. On receipt of police report preliminary order was passed on 24.11.1986 and the Revenue Inspector was directed to be the receiver of the crop and to sell the standing crop by auction. Both parties warp prohibited to enter upon the disputed land.

On 18.3.1987, the second party-Petitioner filed two petitions to drop the proceedings since he is reported to be a tenant by the police. By order dated 25.6.1987 the Petitioner''s petitions were dismissed on the finding that the apprehension of breach of peach having existed, the pendency of a proceeding before the Revenue Officer for relationship of landlord and tenant would not justify dropping of the proceeding. For the said conclusion the learned Magistrate relied upon the decision reported in 57 (1884) C.L.T. 145 (Brajamohan Nath v. Smt. Kesi Tripathy and Anr.). Aggrieved by the aforesaid order, these two applications have been filed in this Court.

Relying upon the decisions reported in Keshab Das and Others Vs. Bauribandhu Behera and Others, and Ram Sumer Puri Mahant Vs. State of U.P. and Others, . Mr. J. Patnaik, the learned Counsel for the Petitioner, submitted that in view of the pendency of the proceeding under the Orissa Land Reforms Act where the dispute can be finally concluded, the proceedings u/s 145, Code of Criminal Procedure are to be dropped.

Mr. A.C. Panda, the learned Counsel for the first party-opposite party on the other hand contested the position and relying upon the decisions reported in 1969 S.C.D. Sajjan Singh s/o Jagannath Singh v. Sajjan Singh s/o Bhairu Singh and Anr. A.I.R 1960 S.C. 242 Mathuralal v. Bnanwarlal and Anr. and 1981 Cri. L.J. 1172 (Del) (Ashrafi Lal v. Labh Singh and Ors.) submitted that absence of apprehension of breach of peace is the pre-condition for dropping of proceeding and mere pendency of a proceeding to decide the rights of parties cannot be the basis for dropping of the proceedings the main object of which is prevention of breach of peace.

During pendency of these two applications an affidavit has been filed stating that the Revenue Officer has been moved to appoint a receiver and although the matter has been heard, no order has been passed.

In the background of the aforesaid contest, it is to be examined if the proceedings u/s 145, Code of Criminal Procedure are to be dropped in view of the pendency of a proceeding u/s 15 of the Orissa Land Reforms Act for protecting the rights of the Petitioner as a tenant and also the application for appointment of receiver.

There can be no dispute that an order under the Orissa Land Reforms Act protecting the right of a tenant shall prevail over an order u/s 145, Code of Criminal Procedure in favour of the landlord and under; Section 15(5) and (6) of the said Act, the Revenue Officer is to direct the landlord to put the tenant in possession of the land on failure to take steps for putting the tenant in possession pursuant to the order in his favour. u/s 15(7), Revenue Officer has power to pass such interim order relating to appointment of receiver and for taking charge of the crops or getting the lands cultivated or restraining the landlord from interfering with the tenant''s cultivation of the land in dispute or for such other purposes as he may deem necessary or expedient. For the purpose of appointment of receiver or prohibition by injunction, the same principles as are applicable for such orders in a Civil Court are to be applied since the statutory authority is a substitute of the Civil Court which is competent to adjudicate the dispute subject to specific provision in this regard in the statute creating the authority. However, the provision being a benevolent provision to protect the tenants, liberal interpretation is to be given so that the object of benevolent is fulfilled.

Various courts render their decisions on the facts and circumstances available on record. Keeping the law in mind use of expressions which may have wider meaning are to be interpreted in the facts of the case. In this context A.I.R 1985 S.C. 472 (Supra) would have no application to this case. In the proceeding before the Supreme Court, there was a decree in favour of one party and even if such decree is under challenge in higher forum, interim orders could have been obtained from the said higher Court. In that context it was held that par alia lei proceeding in the Criminal Court should not continue. The said decision has not been rendered where there is no adjudication of right a, all or where the learned Magistrate contest the conclusion that in spite of the decree which is under challenge, there is apprehension of breach of peace or that interim order of the Court where the matter is pending would not prevent breach of peace, There can be no doubt that the parallel proceeding u/s 145 Code of Criminal Procedure should continue since the general principle is that a party should not be harassed to face the same dispute before two competent forums at a time. In Keshab Das and Others Vs. Bauribandhu Behera and Others, , the learned Magistrate was of the clear finding on the basis of police report that there was no apprehension of breach of peace. In that context the direction of the learned Magistrate to drop the proceeding which was set aside in revision by the learned Sessions Judge was confirmed vacating the revisional order. Dropping of the proceeding is in effect an order u/s 145(5), Code of Criminal Procedure. The said decision is, thus, distinguishable on the facts of this case.

The main object of a proceeding u/s 145, Code of Criminal Procedure, is to prevent breach of peace. For the purpose of prevention of breach of peace the Magistrates has been given power u/s 146 Code of Criminal Procedure, to attach the property where he is satisfied that there is emergency. u/s 145(8), Code of Criminal Procedure interim custodian of the disputed property can be appointed by the Criminal Court. In Mathuralal Vs. Bhanwarlal and Another, it has now been clarified that by attachment of the property u/s 146, Code of Criminal Procedure the proceeding u/s 145, Code of Criminal Procedure, does not come to an end and the Court has the jurisdiction to finally conclude the proceeding u/s 145, Code of Criminal Procedure. It is the general principle that a proceeding once initiated is to be concluded and parties shall be bound by the final decision. In that view of the after, unless the pre-conditions under Sub-section (5) of Section145, Code of Criminal Procedure. Are satisfied there is no scope for dropping the proceeding. All the decisions are to be read in the light of this principle and having been rendered on the facts and circumstances of that case are consistent with the statutory provision. The require no enumeration.

The competent forum may be a common law forum in the Civil court or any other statutory forum where Civil Court''s jurisdiction is conferred or specific power is given under a statute to that forum to adjudicate a dispute. So far as the relationship of landlord and tenant is concerned, such legislation has give Specific power to the Revenue Officer and the statutory authorities to determine such relationship. u/s 67 of the Orissa Land Reforms Act a suit to that extent is prohibited. Accordingly, the decision of the Revenue Officer under the O.L.R. Act would be binding on the parties. Even if it is decided in the 145, Code of Criminal Procedure proceeding that on the date of the preliminary order the Petitioner was not in possession or had been disposed prior to two months of the preliminary order and the proceeding terminates in favour of the opposite party, on the finding by the Revenue Officer under the Orissa Land Reforms Act that the Petitioner is a tenant under the opposite party it can direct the opposite party to deliver possession to the Petitioner. In case the Revenue Officer concludes that the Petitioner is in possession, not as a tenant but as a trespasser and no interim arrangement had been made the landlord would suffer if the proceeding u/s 145, Code of Criminal Procedure is dropped on account of a proceeding under the Orissa Land Reforms Act. Under such contingency, it is to be examined whether the prayer of the Petitioner before the Criminal Court to drop the proceeding was justified and in such circumstances what should be the proper order.

As I have already said a proceeding u/s 145. Code of Criminal Procedure is a preventive proceeding and, therefore, unless the pre-conditions u/s 145(5), Code of Criminal Procedure are satisfied the proceeding ought to be dropped. A proceeding can be terminated only where a more competent forum determining the relationship of the parties has come to the conclusion in favour of one party. There is no time limit for conclusion of a proceeding u/s 145, Code of Criminal Procedure as in a case of 107, Code of Criminal Procedure proceeding. There is no time limit for operation of an order u/s 145, Code of Criminal Procedure as in the case of an order u/s 144, Code of Criminal Procedure. Accordingly, once a custodian has been appointed u/s 145(8) Code of Criminal Procedure and the property has been attached u/s 146 Code of Criminal Procedure the conclusion of the proceeding can be kept pending awaiting finality of the proceeding under the Orissa Land Reforms Act where the relationship of the parties would be determined. This is consistent with the principle in case of civil dispute in Civil Courts between the parties. Keeping that in view, interest of justice would be best served in case I direct the criminal proceeding u/s 145, Code of Criminal Procedure waits for the decision of the Revenue Officer and is not continued.

This direction by itself will not have the affect of vacating the order of attachment of disturbing the appointment of a custodian by the Criminal Court. Once an attachment of the property is lifted or the property is taken out of the hand of the custodian the purpose of 145, Code of Criminal Procedure proceeding will be frustrated since there is no finding that there is no emergency and likelihood of breach of peace, As has been held by the several decision of this Court where a Civil Court has made such arrangement relating the custody of the property which would have the effect of preventing breach of peace the attachment of the property or keeping the same in custody of the custodian may be lifted and the proceeding can be dropped u/s 145(5), Code of Criminal Procedure Normally, the competent forums accept the arrangement of the Criminal Court relating to the interim custody of the property when during the pendency of a proceeding u/s 145, Code of Criminal Procedure the competent forum intends to make such arrangement. In that view of the matter, I have no doubt that while disposing of the application for interim arrangement by the Revenue Officer he shall take into consideration that a custodian has been appointed by the Criminal Court. Revenue Officer has power to make other interim arrangement or appoint another person as receiver for cogent reasons not to accept the custodian appointed by the Criminal Court, and for judicial amity clear reasons must be recorded. Once the Revenue Officer decides in favour of appointment of a receiver and appoints one, it is the duty of the Criminal Court to respect the decision of the Revenue Officer, since the Revenue Officer is to finally adjudicate the dispute between the parties and give necessary direction. Accordingly, the learned Magistrate was not justified in rejecting the applications of the Petitioner. He should have stayed continuance of the proceedings for giving opportunity to the Petitioner to obtain an order from the Revenue Officer.

In the result, the applications are allowed in part to the extent indicated above. Send back the records to the learned Magistrate not continue the further proceedings u/s 145, Code of Criminal Procedure to give opportunity to the Petitioner to move the Revenue Officer under the O.L.R. Act for appointment of a receiver and in case the learned Magistrate is satisfied that the Petitioner is not taking active interest in the appointment of a receiver by the Revenue Officer he may conclude the proceeding u/s 145, Code of Criminal Procedure finally which will, however, be subject to the decision of the Revenue Officer under the O.L.R. Act.