Darya and ors. vs State of Haryana and ors.

Jai Singh Sekhon, J.

Darya and others petitioners arraigned as Party No. 1 before the trial Court, through this petition filed under Section 482 of the Code of Criminal Procedure 1973. (for short referred to as the Code) seek the quashment of the order dated 22.1.1990 (Annexure P. 14) of the Executive Magistrate passed under Sections 145 and 146 of the Code, mainly on the ground that they were in settled possession of the land in dispute.

The brief resume of facts relevant for the disposal of this petition is that the local committee of village Naguran filed an application before the police of P. S. Alewa stating that in their village there is dera land measuring 651/2 acres which they cultivate for the benefit of the dera and had sown the wheat crop. On the day of this application, they were irrigating the fields when Deva Singh and Darya restrained them from so doing and threatened to them kill. On the basis of the application, the local police submitted Kalnadra (Annexure P. 151, dated 1811990 before the SubDivisional Magistrate, Jind for institution of proceedings under section 145 of the Code. It is mentioned in the Kalandra that shamilat deh measuring 514 kanals and 8 marlas in village Naguran stands in the name of religious samadh where lived Baba Surat Nath 3040 years ago. Darya Singh, Vijay Singh, Sat Narain etc. Party No. 1 had taken this land on lease and cultivate the same. That entries in Khasra Girdawari are also in their name, but these persons i. e., the petitioners had been illegally extending the period of the lease resulting in Baba Samadh filing a civil suit for possession against them and the civil suit was decided in favour of the Baba Samadh/Panchayat but the above said party had filed an appeal against that judgment in the High Court and now the Gram Panchayat wants to take possession of the land of this Samadh but the abovesaid party does not want to surrender the possession. Due to this, tension has arisen in the village. Under these circumstances, it was requested that proceedings under Section 145 of the Code be instituted and the land be attached. On this report, the SubDivisional Magistrate passed the impugned order (Annexure P/4) on that day 2211990 under Section 45 of the Code and called upon the parties to appear in his Court on 721990 for filing their respective claims in writing regarding the actual possession or title. The Block Development and Panchayat Officer, Alewa was appointed Receiver under Section 146 of the Code vide that very order after attaching the land.

The sole grouse of the first party, i. e., the present petitioners, is that they are admittedly in settled possession of the land in dispute and thus resort to proceedings under Sections 145 and 146 of the Code is illegal. The Gram Panchayat and the State, on the other hand, maintain that the illegal possession of the petitioners over the land in dispute should not be protected by the Court.

The provisions of section 145 of the Code read as under :

"145. Procedure where dispute concerning land or water is likely to cause breach of peace (i) Wherever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties; receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible decide whether any and which of the parties was at the date of the order made by him under subsection (1) in possession of the subject of dispute.

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under subsection (1) he may treat that party so dispossessed as if that party had been in possession on the date of his order under subsection (1).

(5) Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation the order of the Magistrate under subsection (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the provisions to subsection (4) may restore to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this subsection shall be served and published in the manner laid down in subsectio (3).

(7) When any party to any such proceeding dies the Magistrate may cause the legal representatives of the deceased party to be made a party to the proceedings and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, be may make an order for the proper custody or sale of such property, and, upon the completion of the enquiry, shall make such order for the disposal of such property, or the said proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107."

A bare glance through subsection (1) of Section 145 leaves no doubt that the Executive Magistrate has to pass an order regarding his satisfaction from the report of the police officer or upon another information that a dispute likely to cause breach of peace exists concerning the land or water or the boundaries thereof and thereafter he will require the parties to such dispute to attend the Court and file written statements of their respective claims in respect of the fact of actual possession of the subject in dispute. Thus there is absolutely no doubt that the legislature had deliberately circumscribed the scope for institution of the proceedings under Section 145 of the Code in respect of the actual possession of the subject of dispute. The matter does not rest here, as the legislature had again emphasised this aspect in subsection (4) of this section by providing that the Magistrate shall then without reference to the merits or the claim of any of the parties to a right to possess the subject of dispute, peruse the statements of the parties, hear the parties, receive all such evidence as may be produced by them, take further evidence, if any, as he thinks necessary and if possible, decide, whether any and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute. The proviso appended to this subsection further clarifies that if a party has been wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, the Magistrate may treat a party so dispossessed as if it was in actual possession of the subject of dispute and order the restoration of such possession.

Thus, there is no escape but to conclude that proceedings under Section 145 of the Code can be instituted only if both the rival parties assert their claim to be in actual possession of the land etc. in dispute and not in those cases where one of the parties is admittedly in settled possession of the land much to prior the period of two months of the institution of such proceedings. On the other hand, it appears 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 resort to security proceedings under Section 107 of the Code.

Although, as discussed above, the provisions of section 145 of the Code are clear enough to conclude that the same cannot be invoked in a case where one of the parties is in settled possession of the land in dispute, yet all the same, the decision of Allahabad High Court in Govind Sharma and another v. State of U.P. and another, 1977 Cri. L.J. 2007 can be safely referred in this regard. This Court has also taken a similar view in Neti and others v. State of Haryana, 197377 Suppl. CLR 655.

Viewing the present case in the light of the above legal position, it transpires that not only the report of the police (Annexure P. 15) depicts the present petitioners to be in actual possession of the land although illegally, but the judgment of the Civil Court Annexure P. 6 dated 17.12.1983 in Civil Suit 429 and 430 of 1981 further show that the present petitioners are in illegal possession of the land since long and that the property belongs to the abovereferred Samadh and was wrongly escheated in favour of the State vide order dated 2821978 of the Collector, Jind. Appeal against the abovereferred judgment was dismissed by the learned District Judge on 5111984 as is apparent from Annexure P. 7. Moreover, the entries in Jamabandi Annexures P. 1 to P.5 also depict these petitioners to be in cultivating possession of specific portions of the land since the year 197879 uptill 198384. In the application dated 18 1.1990 filed by Ram Niwas Sarpanch of the Gram Panchayat as well as by Lachhman son of Chandan one of the members of the local committee who had filed the application for instituting the proceedings under section 145 of the Code, it is also admitted that 66 acres of land of the Samadh is in possession of Dewa Singh, Darya Singh, Ram Sarup, Sat Narain, Randhir, Hari Om Rup, i.e., the present petitioners. It is further mentioned that whenever these persons are asked to leave the land they threaten to kill the members of the Gram Panchayat etc. It is not disputed that on basis of this application security proceedings were instituted against the present petitioners. The entries in the khasra girdwari appended as Annexure `A'' also depict the present petitioners to be in cultivating possession of the land since kharif 1984 till rabi 1990.

The matter does not rest here as the notice Annexure P. 10 dated 1.9.1989 given by the Tehsildar to the present petitioners also reveals that the petitioners who are in illegal possession of the land in dispute should vacate the same. Thereafter, the petitioners challenged the abovereferred notice in C.W.P. No. 750 of 1990 on 8.1.1990 which was dismissed on 19.1.1990, by the High Court with the observation that the petitioners should resort to Contempt of Court proceedings. Thereafter the petitioners filed C.O.C.P No. 51 of 1990. It appears that due to the filing of the abovereferred civil writ petition, the local authorities thought of getting the land attached by instituting proceedings under sections 145 and 146 of the Code as these proceedings were instituted on 22.1.1990. The perusal of the rapat roznamcha of the Patwari dated 8.2.1990 attached with Cr.M.No. 2233 of 1990 filed by the respondents in this very petition also shows that the Receiver had taken possession of the specific portions of the land from the present petitioners.

Anyhow, there being no doubt about the petitioners being in settled possession of the land in dispute, legally or illegally, the resort to proceedings under section 145 of the Code is clearly an abuse of these provisions and the order of attachment of this land as well as appointment of receiver under section 146 of the Code shall also fall. Moreover, the order of the trial Court under section 146 also suffers from the infirmity of nonapplication of mind to the facts and circumstances of the case as it is nowhere stated therein that the case was one of emergency or that none of the parties was in possession of the disputed property.

Consequently, for the foregoing reasons, there is no option but to quash the impugned order as well as the entire proceedings instituted under section 145 of the Code. The receiver shall deliver actual possession of the land to the petitioners from whom he had taken over the same. He shall also release the sale proceeds of produce of the land in favour of the respective petitioners.

The petitioner stands disposed of accordingly.