Babu Ram vs U.P. Zila Magistrate and Another

Narayan Shukla, J.—Heard learned Counsel for the parties.

On being raised the question of maintainability of the petition against the order passed in exercise of power provided u/s 146(1) of the Code of Criminal Procedure, learned Counsel for the Petitioner cited a case i.e. Indra Deo Pandey v. Smt. Bhagwati Devi 1981 ACJ 316 in which the question "whether an order for attachment of property is an interlocutory order or not" has been answered in the manner that an order attaching property u/s 146 of the Code is purely an interlocutory order and it cannot be read independently rather it is the out come of the proceeding pending u/s 145 of the Code.

Being satisfied with the submission of learned Counsel for the Petitioner, I hereby entertain the petition on merit.

The Petitioner has challenged the order passed by the Deputy Collector, Jalalpur, Ambedkarnagar on the ground that he found title as well as possession of Gata No. 910/1137 confirmed by the revenue records in the proceeding u/s 122-B of the U.P. Zamindari Abolition and Land Reforms Act as at this stage, the land was recorded as Banjar and Petitioner being Scheduled Caste was granted possession over there, he has been given benefit of Section 123 of the U.P. Zamindari Abolition and Land Reforms Act.

On the other hand, learned Counsel for the Respondent submits that it is an ancestral property and suit for partition is already pending before the Civil Court, Akbar Pur, in which the Civil Court has already issued temporary injunction to the parties to maintain status quo over the property. He also invites the attention of this Court towards the police report dated 12th of December, 2010, wheseby it is reported that the Shops were constructed over the land in dispute by the deceased Ganpat, which has been ancestral properties, in which all five sons hold share, but Babu Ram is trying to get possession over three shops and similarly Sriram are two shops. Thus he has reported that there is a dispute of possession amongst parties on a counter of which there is likelihood of breach of peace. He also invites the attention of this Court towards the provisions of Section 146 of the Code of Criminal Procedure, in which it is provided that if the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

Thus he submits that since over the disputed Shops, the Petitioner has been trying to dispossess the Respondent, keeping in view the emergency in the case, Sub-Divisional Officer has rightly attached the property.

Upon perusal of the order passed by the Sub-Divisional Officer, I find that on the basis of Police report, the Sub-Divisional Officer has rightly been satisfied that there is a dispute amongst the parties in regard to possession of shops and there is likelihood of breach of peace, therefore, he thought it necessary to attach the property in exercise of power provided u/s 146(1) of the Code. Accordingly he has passed the order.

Under proviso of Sub-section (1) of Section 146, it is provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace in regard to the subject of dispute.

Indisputedly, the suit for partition is pending between the parties along with temporary injunction issued to the parties to maintain status quo. However, there is a police report therein that the Petitioner is trying to get possession over the Shop.

Therefore, I am of the view that the Sub-Divisional Magistrate has rightly exercised his power. However, it is provided that, as it is all open to the parties to satisfy the learned Magistrate at any stage that now the dispute of possession is over and there is no longer any likelihood of breach of peace. Being satisfied so the learned Magistrate can withdraw the attachment of property.

Therefore, I do not feel it appropriate to interfere with the order at this stage. The parties are at liberty to satisfy the learned Magistrate for different order.

In the aforesaid terms, the petition is dismissed.

Petition Dismissed.