Gurtej Singh vs State of Punjab

V.K. Jhanji, J.

This will dispose of Criminal Misc. No. 14752M of 1993 as well as C.O.C.P. No. 1000 of 1993.

Crl. Misc. No. 14752M of 1993 arises out of proceedings under Section 145, Cr.P.C. whereby the Sub Divisional Magistrate, vide order dated 27.10.1993 (Annexure P9) has ordered attachment of the property in dispute. Further, a direction has been given to the Tehsildar, Sangrur, to take possession of the property. The land in dispute is measuring 297 Bighas 12 Biswas situated in village Chatha Sekhon, District Sangrur. In regard to land measuring 164 Bighas 6 Biswas, a civil suit between the petitioners and respondent Nos. 4 and 6 was decided against the petitioner by the Courts below, against which Regular Second Appeals No. 1580 and 1581 of 1991 are pending in this Court. At the time of motion hearing, dispossession of the petitioners was stayed. Later on, on 891991 in presence of the counsel for the parties, interim order staying the dispossession was allowed to continue provided they furnished security for mesne profits for a period of ten years. Security was required to be furnished within one month thereof. Accordingly, security for Rs. 2,00,000/ was furnished meaning thereby that the order whereby the dispossession of the petitioners was stayed, became absolute. With regard to the remaining land, another civil suit was decreed against Gurdev Kaur respondent by Sub Judge 1st Class vide order dated 10.12.1985. Gurdev Kaur, having felt aggrieved of the judgment and decree, filed appeal before the first appellate Court which is stated to be pending in which execution of the decree has not been stayed. Thus, for the remaining land, Gurdev Kaur respondent has been restrained from taking possession of the land, which admittedly, is in ossession of the petitioners. S.H.O. vide Kalandra dated 17.10.1987 made a prayer before the Sub Divisional Magistrate that some dispute regarding 297 Bighas 12 Biswas is going on between the petitioners and the respondents for which case under Sections 307/427/148/149, IPC dated 7.6.1993 has been registered. A prayer was made that Receiver be appointed to take possession of the land in dispute so that crops may be harvested. On receipt of the application, notice was issued to the parties.

Petitioners, in their reply, which has been attached with this petition as Annexure P7, brought it to the notice of the learned SubDivisional Magistrate that the other party has been restrained from dispossessing the petitioners and, therefore, he has no jurisdiction to start parallel proceedings under section 145, Cr.P.C. In their reply, they also quoted a judgment of this court taking the view that where a party has obtained an order from a Civil Court restraining a party from interfering with the possession, parallel proceedings under section 145, Cr.P.C. are not maintainable. The SubDivisional Magistrate, in his wisdom, decided to overlook the judgment quoted in the reply and also order of this court staying dispossession of the petitioners and the order whereby Gurdev Kaur had been restrained from interfering with their possession and found it to be a case one of emergency and attached the property under Section 146(1) Cr.P.C. The Tehsildar Sangrur was appointed as Receiver under Section 146(2), Cr.P.C. Pursuant to this order Receiver took possession and as stated by counsel for the parties, crops were cut and now the land is lying vacant. It is worth noticing at this stage that in para 4 of the reply, SubDivisional Magistrate has admitted that at the time of initiation of proceedings under Section 145, Cr.P.C. and taking of possession by Tehsildar, petitioners were in possession of the land in dispute.

I am in agreement with the contention of counsel for the petitioner that proceedings under Section 145, Cr.P.C. are nothing but an abuse of the process of Court and cannot be sustained. It has consistently been held by this Court that if one party uses force to dispossess the other party in spite of the stay order in his favour, leading to the apprehension of the breach of the peace creating a situation for the launching of the proceedings under Section 145, Criminal Procedure Code and attraction of its emergency power under subsection (4) the Magistrate will then step in, not to start parallel proceedings but to defend the orders of the Civil Court by not allowing the aggressor to establish himself in possession of the subject matter of the dispute in violation of the orders of the Court. (For this see 1976 P.L.R. 803 Mohinder Singh v. Dilbagh Rai).

In this case, the SubDivisional Magistrate, instead of stepping in to defend the order of this court and the decree of the Civil Court, ordered appointment of Receiver. It has also come on record that the SubDivisional Magistrate, finding apprehension of breach of public peace had initiated proceedings under Sections 145/107/151, Cr.P.C. Having initiated the security proceedings, there was no justification with the SubDivisional Magistrate to initiate parallel proceedings under Section 145, Cr.P.C. and that too when order of this Court and the judgment and decree of the Civil Court had been brought to the notice of the SubDivisional Magistrate. In his reply, the SubDivisional Magistrate has not denied that these were not brought to his notice. The only alternative with the SubDivisional Magistrate was to stop the aggressor (respondent) in his effort, if any, made to take possession from the petitioners forcibly.

Accordingly, order dated 27.10.1993 passed by the SubDivisional Magistrate, Sangrur, under any circumstances, cannot be sustained. The same shall stand quashed. As regards the contempt proceedings, though technically the SubDivisional Magistrate, has by appointing the Receiver despite the order of this Court committed contempt of this Court, yet he having tendered apology, I think, it would be enough if it is recorded that he should be careful in future. The rule in C.O.C.P. against the respondents shall stand discharged. The Receiver i.e. the Tehsildar, Sangrur, who took possession of the land in dispute, is ordered to deliver the same to the petitioners who shall remain in its possession subject to the decision of the Regular Second Appeals, as also the decision of appeal which is stated to be pending before the first appellate Court.

JUDGMENT accordingly.