Balbir Singh vs State of Punjab

K.S. Kumaran, J.—Heard counsel for both the sides and perused the records.

The learned counsel for the petitioner contends that on a Kalendera initiated by the S.H.O., Police Station Shambhu on 2S.7.1996 (Annexure P-5), the Sub Divisional Magistrate, Rajpura passed a preliminary order-Annexure P-6 dated 5.8.1996 directing the parties namely, the petitioners and respondents 2 and 3 herein to lead evidence regarding their respective claims in respect of the possession of the disputed property. The petitioners claim that they have filed their written statement vide Annexure P-7 on 23.9.1997. The learned counsel for respondents 2 and 3 fairly concedes that the respondents have not so far filed their reply inasmuch as it is on their complaint that the kalendera has been put in. But even if the kalendera was lodged on a complaint by respondents 2 and 3, the respondents 2 and 3 ought to have filed their statement of claim in pursuance of the order passed by the learned Magistrate vide Annexure P-6.

While this being so, the learned Magistrate by the order Annexure P-8 dated 27.10.1997, has ordered the attachment of the property in dispute and appointed the Naib Tehsildar, Ganaur as the Receiver. While passing this order, the learned Magistrate has only observed that from the report of the S.H.O., Police Station, Shambhu dated 28.7.1996 and from the slatemenl of Gurchain Singh, S.l./S.H.O., Police Station, Shambhu dated 5.8.1996, it has seen that there is a dispute regarding the possession of the lands in dispute and that the preliminary order u/s 145(1) Cr.P.C. was passed by him. The learned Magistrate has also observed that the S.1./S.H.O..P.S. Shambhu has made astatement on 5.8.1986 that there is every likelihood of breach of peace regarding the possessing of the land in dispute and regarding the harvesting of the crops standing on the lands and, therefore, it was considered that the case is of emergent nature, and as such, he ordered that the land in dispute was attached, and appointed the Naib Tahsildar as the Receiver. The learned counsel for the petitioner read out the provisions of Section 146 Cr.P.C. to point out that the learned Magistrate, before ever passing this order of attachment and appointment of Receiver, has not complied with the provisions of Section 146 Cr.P.C. in that he did not really satisfy himself that there was an emergency or that neither of the parties was in possession or held that he is unable to decide as to which of the parties is in possession. He contends that before ever the property is attached and a Receiver is appointed, the learned Magistrate should have first satisfied hiiTiselfon these points and then only he could have attached the property and appointed the Receiver.

4.1 agree with the learned counsel for the petitioners in this respect. The order Annexure P-8 impugned in this petition does not say that the learned Magistrate was unable to decide as to who is in possession of the property or that the property is not in the possession of either of the parties.

Further, as rightly pointed out by the learned counsel for the peti''.ioners, the preliminary order dated 5.8.1996 itself was passed both on the basis of the Kalendera and the statement of S.l.-Gurchain Singh made on 5-8.1996, and at that time, the learned Magistrate did not deem it necessary ''hat there was any emergency to attach the property and to appoint Receiver. Long thereafter, i.e. on 27.10.1997, the learned Magistrate had though it fit to appoint a Receiver by relying on the statement of (he Sub Inspector made on 5.8.1996, without any further material to conclude that there was really an emergency on 27.10.1997 to pass such an order. Therefore, it is seen that the order of the learned Magistrate is not in accordance with the provisions of Section 146 Cr.P.C.

In these circumstances, 1 am of the view that the impugned order-Annexure P-8 passed by the learned S.D.M., Rajpur is unsustainable and has to be set aside. Accordingly, the said order-Annexure P-8 is Set aside.

Further, as pointed out already in pursuance of the preliminary order passed by the learned Magistrate on 5.8.1996, the petitioners claim to have filed their written statement. Respondent 2 and 3 have not so far filed their statement of claim.

Therefore, the matter is remitted back to the leaned S.D.M., Rajpura who will proceed further with this case. The parties will appear before the learned Magistrate on 26.2.2001. It will be open to respondent 2 and 3 to file their statement of claim. After the parties have entered appearance and put in their claims, the learned Magistrate will then proceed in accordance with law and decide the proceedings u/s 145 Cr.P.C. The petitioner will also be entitled to put forward the plea that no proceedings u/s 145 Cr.P.C. could be initiated at all. Ordered accordingly.

Petition partly allowed.