Chander Shekhar vs Ishwar Chand Gupta

K.K. Srivastava, J.

This is a petition filed under Section 482 of Code of Criminal Procedure seeking the quashing of annexures P9 to P11 passed by S.D.M. Palwal on 8.3.1995 under Section 145(1) of Code of Criminal Procedure and Section 146 of Code of Criminal Procedure. The shop in dispute of the petitioner was attached by the S.D.M. Palwal in the proceedings under Section 145 of Code of Criminal Procedure and Executive Officer, Municipal Committee, Palwal was appointed as Receiver of the shop.

The disputed shop is owned by the petitioner Chander Shekhar son of Siri Chand, resident of G.T. Road, Opposite Municipal Committee, Palwal. The eviction order in respect of the said shop was passed in favour of the petitioner on 14.3.1993 in case No. 21/2 dated 16.7.1991, Chander Shekhar v. Musadi Lal by Shri R.K. Bishnoi, Rent Controller, Palwal, a copy of which has been annexed with the petition as Annexure P1. The warrant of possession was issued from the Court of Shri A.K. Singh Panwar, Additional Senior Sub Judge, Palwal and the same was executed on 6.3.1995 and the possession of the said shop was delivered to the petitioner. On the application moved by the petitioner the Additional Senior Sub Judge had ordered for police help to the bailiff for the purpose of execution of the order of eviction. The true copy of the order passed by Additional Senior Sub Judge directing the police help has been annexed as Annexure P2. Annexure P3 is the copy of the direction given by Additional Senior Sub Judge, Palwal to Deputy Superintendent of Police, Palwal. A copy of the warrant of possession has been annexed as Annexure P4 and the report of the bailiff submitted to the Court after execution of the warrant of possession has been annexed as Annexure P5. Respondent No. 1 Ishwar Chand son of Ram Chand, Proprietor of M/s. Jai Kishan Khad Bhandar, Railway Godown Road, Palwal filed an application under Section 145 of Code of Criminal Procedure before the Sub Divisional Magistrate, Palwal complaining that he had been dispossessed by the petitioner from the disputed shop illegally and forcibly on 6.3.1995. Additionally, it was alleged that the petitioner was trying to demolish the wall in the shop in dispute. It was mentioned further that there was an apprehension of breach of peace. Apart from moving the application under section 145 Cr.P.C., respondent No. 1 also moved application under JUDGMENT 21 rules 99 to 101 of Civil Procedure Code for the restoration of possession in the execution proceedings on 8.3.1995. Notice of the said application was issued to the petitioner. Copies of the application under Section 145 Cr.P.C. and under JUDGMENT 21 Rules 99 to 101 of Civil Procedure Code have been annexed with the petition as Annexures P6 and P7 respectively. The learned S.D.M., Palwal recorded the statement of respondent No. 1 on 8.3.1995 itself (copy of which is Annexure P8) and he was satisfied that there was an apprehension of breach of peace and therefore, he assumed jurisdiction under Section 145 Cr.P.C. and passed an order as envisaged by Section 145(1) Cr. P.C by which he called upon the respondent to file written statement by 22.3.1995. The disputed shop was also attached under Section 146 Cr.P.C. The learned S.D.M. proceeded to appoint the Executive Officer of the Municipal Committee, Palwal as the Receiver of the disputed shop. The petitioner has challenged the impugned orders, Annexure P9 to P11, on the grounds, inter alia that these orders have been passed without application of judicial mind and no reasons have been mentioned for making of the impugned orders. These orders are, in fact, nonspeaking. There was no basis of initiation of proceedings under Section 145 Cr.P.C. or for passing an order of attachment under Section 146 Cr.P.C. There was no justification for appointment of the Executive Officer of Municipal Committee, Palwal, as the Receiver of the disputed shop on 8.3.1995. The Receiver, it is averred, took possession of the disputed shop from the petitioner on 9.3.1995. A copy of the report given by the Executive Officer aforesaid has been annexed as Annexure P12. The petitioner further contended that the impugned orders are illegal and invalid because the learned S.D.M. could not exercise jurisdiction under Section 145 Cr. P.C particularly, when the matter was pending before the Civil Court before which respondent No. 1 had filed an application under JUDGMENT 21 Rules 99 to 101 C.P.C. The petitioner further alleged that he had been given possession of the disputed shop through the agency of the Court in execution of the order of eviction passed by the Rent Controller and the warrant of possession with police force had been issued by the learned Additional Senior Sub Judge, Palwal. The petitioner did not take the law in his own hands for dispossessing respondent No. 1 from the disputed shop. The apprehension of breach of peace expressed in the application under Section 145 Cr.P.C. was also categorically denied.

Notice of the petition was issued to the respondents. Respondent No. 1 put in appearance and defended the impugned orders passed by the learned S.D.M. Palwal on the ground that respondent No. 1 had been illegally and forcibly dispossessed from the disputed shop in execution of the order, which has been referred to above, and, he was not a party to the proceedings for eviction. It was, however, not disputed that respondent No. 1 had filed a petition under JUDGMENT 21 Rules 99 to 101 C.P.C. before the concerned Court and the said application was pending decision there

I have heard learned counsel for the petitioner and the learned counsel for respondent No. 1 and have gone through the record of the case carefully.

It is settled law that where the dispute is pending in the Civil Court, the parallel proceedings under Section 145 Cr.P.C. will not be allowed to proceed in respect of the same subject matter. Proceedings under Section 145 Cr.P.C. are preventive provisions and security proceedings in which the right and title of the respective party to hold the possession to the property forming the subject matter of the proceedings cannot be gone into and decided by the learned Executive Magistrate. The learned Executive Magistrate is only concerned in taking steps for preventing the apprehension of breach of peace and to ensure that no breach of peace is committed by either party to the proceedings. In the instant case, respondent No. 1, according to his allegations, was dispossessed from the disputed shop in execution of an order of eviction passed in a case in which he was (sic) a party. Respondent No. 1 has sought remedy as provided under the law by moving an application under the provisions of order 21 Rules 99 to 101 C.P.C. The matter is still pending in the concerned Civil Court. Learned S.D.M. in view of the pendency of the matter before the Civil Court could not assume jurisdiction and start parallel proceedings under Section 145 Cr.P.C. Under somewhat similar circumstances, this Court held in Nachhattar Singh v. State of Punjab and others, 1994(2) R.C.R. 439 that where the petitioners obtained a decree of the Civil Court which was affirmed by the first appellate Court as well as in the Regular Second Appeal and it was thereafter that they received the possession in execution proceedings and once a claimant or a party comes in possession of the disputed property through lawful means, it shall not be appropriate to initiate proceedings under Section 145 Code of Criminal Procedure.

The case reported in Darya and others v. State of Haryana and others, 1991(2) C.L.R. 268 was cited in the case of Nachhattar Singh (supra). In Darya and others'' case (supra) it was held that if a party is in actual possession of the land in dispute but still there is likelihood of breach of peace, then the only appropriate action would be to resort to security proceedings under Section 107 of the Code.

In the instant case, the petitioner did not dispossess respondent No. 1 from the disputed shop otherwise than in due course of law. If respondent No. 1 who was evicted in the execution of the order of eviction passed by the Rent Controller under the warrant of possession issued by Additional Senior Sub Judge, Palwal who also allowed police help to the petitioner, the remedy lay under the provisions of JUDGMENT 21 Rules 99 to 101 C.P.C. and the same has, in fact, been availed by respondent No. 1 and, therefore, the learned S.D.M. Palwal could not assume jurisdiction under Section 145 Cr.P.C. in respect of the disputed shop. Once the learned Magistrate could not assume jurisdiction under Section 145(1) Cr.P.C., its necessary implication would be that he could not order for attachment of the shop in dispute and he could not appoint a Receiver of the disputed shop and take possession from the petitioner who had been given possession by lawful means under the warrant of possession issued by the Civil Court to execute an order of eviction in respect of the disputed shop passed by the Rent Controller, Palwal. Resultantly, this petition has substance and deserves to be allowed. The petition is allowed. The impugned orders passed by the learned S.D.M. Palwal which are annexures P9 to P11 passed by under section 145(1) Cr.P.C. and Section 146 Cr.P.C. and for appointment of Receiver in respect of the disputed shop by appointing the Executive Officer of the Municipal Committee, Palwal as the Receiver of the disputed shop, (Annexures P9 to P11) are quashed.