Badan Singh vs State of Haryana

B. Rai, J.

This petition under section 482 Cr.P.C. has been filed for quashing the order dated 9.9.1997 passed by Sub Divisional Magistrate, Hodal vide which a Receiver has been appointed with a further prayer to stay further proceedings.

Case of the petitioners is that they are Ghair Marusi tenants under one Smt. Kalawati in respect of land bearing Rect. No. 31, Killa No. 7/2(417), 14(711), 17/1(317) total measuring 16 Kanals 5 Marlas situated within the revenue estate of village Marruli Tehsil Hodal District Faridabad. It is further alleged that Hira respondent No. 2 filed a suit for declaration that he had inherited the suit land being the only legal heir of one Shri Ramji Lal. He also sought a decree of permanent injunction restraining the petitioners herein from taking illegal and forcible possession of the suit land. Petitioners herein also filed a suit of the same nature against Hira. During the course of the proceedings of the said suit, a compromise was effected between the parties in the presence of sons of Hira respondent No. 2. A compromise decree was passed on 29.11.1996 by Civil Judge, Junior Division, Palwal. Copies of the relevant documents are annexed as Annexure P1 to P3 with the petition. As per the said decree dated 23.11.1996, land measuring 13 kanals 15 marlas fell to the share of the petitioners and the remaining land fell to the share of the respondents. The entries to this effect were duly effected in the Rapat Roznamcha vide Entry No. 147 dated 17.12.1996. It is also the case of the petitioners that on the strength of the compromise they are in cultivating possession of the land. On the complaint under section 145 Cr.P.C. made by Hira, Calendra Annexure P4 was prepared by SI/SHO Police Station Hodal and was submitted to the Sub Divisional Magistrate, Hodal on which the impugned order was passed.

In response to the notice of motion, respondents have contested the claim of the petitioners by filing written statements. Respondent No. 2 has filed his own reply, while respondents No. 3 and 4 have filed a joint written statement. They have asserted that they are in actual cultivating possession of the land in dispute. They have also stated that the petitioners are bent upon to interfere in the peaceful possession of the suit land.

It was argued by the learned counsel for the petitioners that respondent No. 2 with ulterior motive got a calendra prepared under section 145 Cr.P.C. from the local police. That calendra was submitted to the Court of Sub Divisional Magistrate, Hodal by the SHO Police Station Hodal without affording an opportunity to associate them in the enquiry before preparing the Calendra. It was further argued that the Sub Divisional Magistrate without going through the revenue record and the judgments rendered by the Court issued the order under Section 146 Cr.P.C. effecting the attachment of the land in question and gave the same on Supardari to Tehsildar Hodal. It was contended that the learned SDM Hodal, was not justified in passing the said order without complying with the provisions of Section 145 Cr.P.C. According to the learned counsel Tehsildar Hodal has been wrongly appointed as Receiver. Learned counsel for the respondents as also the learned Assistant Advocate General have endeavoured to refute the contentions. A submission was made that the subject of dispute has rightly been attached and no fault can be found with the appointment of Receiver. According to the learned counsel for the respondents, the order appointing the Receiver is an interlocutory order and cannot be assailed in the proceedings under section 482 Cr.P.C.

After hearing the learned counsel for the parties and perusing the material available on record, I am of the view that the petition deserves to be dismissed.

At the outset it is significant to note that petitioner has approached this Court with a prayer to quash the proceedings under Section 145 Cr.P.C. His only prayer is to quash the order attaching the subject of dispute and appointing Receiver. The consideration by this Court would be confined to that aspect only.

The object of the provisions contained in Section 145 Cr.P.C. is merely to prevent the breach of peace by maintaining the possession of one or other party which was in possession immediately before the dispute arose. The action which is ultimately to be taken is not punitive in nature. It is only preventive; it is provisional for that purpose and subsists only until such time rights of the effected parties are finally adjudicated upon by a competent Court to deal with the matter in due course. The primary object of these provisions is prevention of breach of peace. The existence of a dispute likely to cause a breach of the peace is a pedestal for the exercise of powers conferred by the provisions of Section 145 Cr.P.C. In order to prevent the breach of public peace, the subject of dispute is taken out of the hands of the disputing party and holds it as its custodian until the disputants establish the right to possess the subject of dispute or till the time the disputed question of possession is settled by a civil Court. Two essentials are necessary to exercise the jurisdiction under section 145 Cr.P.C., that is; there is a dispute concerning land etc. and on account of that there is every likelihood of breach of peace.

It cannot be disputed that order of attachment and appointment of Receiver can be passed by the Magistrate on perusing the material available on record. Before initiating the proceedings under this provision of law, the magistrate is to satisfy himself that there is a dispute concerning the land etc. and there is every likelihood of breach of peace. In the instant case, the Sub Divisional Magistrate, Hodal after perusing the file, report of the SHO Hodal and on hearing the parties and their counsel has specifically stated in the order Annexure P5 that there is apprehension of breach of peace between the parties and then ordered the attachment of disputed land and appointed Tehsildar Hodal as Superdar. It is not the requirement of law that at the time of passing an order of attachment, opposite party is required to be informed or a notice is required to be given to it. The magistrate seized of the matter can himself appoint a Receiver of the property when he considers the case to be of emergent nature or if he decides that none of the parties was in possession or if he cannot decide which of them was in possession, the order of attachment and appointment of Receiver shall remain in force till the rights of the parties with regard to the possession of subject of dispute is finally decided. No doubt, the Sub Divisional Magistrate, Hodal, has not specifically stated that "he is satisfied that the case is one of emergency". It appears that he was subjectively satisfied from the report of the SHO Hodal that on account of the dispute regarding possession in respect of the land in question, there was apprehension of breach of peace which led him to order the attachment of subject of dispute and to appoint Receiver. It cannot be disputed on any ground that the order of attachment of subject of dispute and appointment of Receiver subsists only uptil the right of the parties with regard to the possession are finally determined by the Executive Magistrate himself or by a Civil Court. Thus the nature of impugned order is interlocutory and not a final order determining the rights of the parties. If the rights of the parties have not been finally determined, and the magistrate is satisfied that dispute regarding possession subsists and apprehension of breach of peace also subsists, the setting aside of the order of attachment and appointment of Receiver would necessarily cultminate into dislodging the satisfaction of the Executive Magistrate the result of which may be disastrous.

For the reasons recorded above, I find no merit in this petition and the same is dismissed.