Hari Prem vs State of U.P. and Others

A.P. Sahi, J.—This petition questions the validity of the orders dated 23.10.2004 passed by the Sub-Divisional Magistrate and also the order dated 6.7.2006 passed by the learned Addl. Sessions Judge affirming the same whereby the direction issued by the Magistrate for making recovery from Respondent Nos. 2 to 4 has been recalled.

The facts shorn of details, as appears from the pleadings exchanged between the parties, are that the Petitioner allegedly entered into some agreement to sell after receiving an earnest money of Rs. 2,80,000 in respect of the land in dispute. The Petitioner appears to have filed a civil suit being Original Suit No. 179 of 2000, for rescinding the said agreement to sell which was a registered document and which matter is stated to be pending as on date in the Court of the learned Civil Judge (Junior Division), Chhata, Mathura.

The Respondent Nos. 2 to 4 alleged that having paid the said earnest money and the agreement that had been entered into, they were also transferred possession of the land and it is they who had sown the crops about which the dispute arose when these proceedings were initiated. The Petitioner contends that the agreement to sell, on the basis whereof the Respondent claims possession, is a forged document and that apprehending a breach of peace with regard to the harvesting of the crops, the Petitioner moved an application before the Sub-Divisional Magistrate for taking appropriate action on which a report was submitted by the Station House Officer of the concerned police station on 4.10.2001 ; a copy of the said police report is Annexure 1 to the writ petition. From the records, it appears that an interim order was passed by the Magistrate on 12.10.2001 ; copy whereof is Annexure-3 to the petition. The said order restrained both the parties from interfering with the standing crops or harvesting them. Thereafter, another order was passed by the Magistrate on 22.10.2001 directing the Lekhpal to attach the crops in his presence and to deposit the amount in Court. The file was to be put up for detail orders on 24.10.2001.

In between it is alleged that on 23.10.2001, the opposite parties Nos. 2 to 4 hurriedly harvested the crops and, as such, an application was filed by the Petitioner on 24.10.2001 to take appropriate action against the Respondent Nos. 2 to 4. It was alleged that this was done in violation of the orders dated 12.10.2001 and 22.10.2001.

The Magistrate passed an order of attachment on 24.10.2001 ; which is on record as Annexure 2 to the writ petition. It was further directed that parties shall maintain peace unless and until any orders are passed by the civil court in the suit preferred by the Petitioner and further directed that the Lekhpal shall dispose of the crops by way of auction and deposit the same through a Challan in court. It was further stated that this was necessary as the crops were to be harvested or else they would be affected. The parties were further directed to submit their evidence in respect of the possession. A revision was preferred against the said order dated 24.10.2001 by the contesting Respondent and the said revision was dismissed holding that the Magistrate has rightly invoked the powers u/s 146, Cr. P.C., for ordering attachment keeping in view the urgent need of the situation.

An application was moved on 12.10.2002 by the Petitioner that the Respondent No. 2 in spite of the order of attachment has been continuously harvesting the crops and has committed theft and that he has again committed the same offence and, as such, appropriate action should be taken. An order was passed thereon by the Magistrate to lodge an F.I.R. on 13.11.2002 and to give the custody of the attached property to some independent person. Accordingly, the Naib Tehsildar on the said direction gave the custody of the property to one Jagvir Singh as receiver and it is alleged that the said crops were taken into custody by Jagvir Singh. An application was moved on 13.1.2003 before the learned Magistrate that the contesting Respondent has harvested more than 4 crops illegally and, therefore, the amount should be recovered from them. A notice was issued to the contesting Respondents calling upon them to show cause as to why the said amount be not recovered from them. Objections were filed which were rejected and it was directed that the amount has to be deposited otherwise the same shall be recovered as arrears of land revenue. A revision was filed against the same by the Respondent which was dismissed on 29.10.2003 and as a consequence thereto the recovery proceeded and the Respondents by the order dated 28.6.2004 were directed to deposit the entire amount. The Respondents moved an application for recall of the said order objecting to the alleged report of Naib Tahsildar and further to hear them before passing orders.

The Sub-Divisional Magistrate thereafter proceeded to hear the matter in respect of the application moved by the Respondents for recalling the order of the recovery of the amount and after hearing the parties, recalled the said order vide impugned order dated 23.10.2004. A finding was recorded that the order dated 28.6.2004 was obtained by misleading the Court and that the appointment of the receiver had already preceded the formal order being passed by the Magistrate which was illegal. It is this order against which the Petitioner went up in revision and the revsion was also dismissed holding that the subsequent order for appointing of supurdgar was made on 14.11.2002 whereas the Naib Tahsildar, on his own, had handed over to Jagvir as superdgar on 20.10.2002, which action was contrary to law.

Learned Counsel for the Petitioner submits that the impugned orders are unsustainable as the Respondents were themselves responsible for having harvested the crops illegally and, therefore, the recovery proceedings had been rightly initiated. Sri Singh, learned Counsel for the Petitioner, further contends that there was no justification for recall of the order dated 28.6.2004 once the order dated 9.10.2003 had been passed.

Learned Counsel for the Respondent, on the other hand, contends that the entire proceedings were illegal right from the very inception and that the manner in which the Sub-Divisional Magistrate has proceeded to attach the property and proceeded to get the crops harvested is absolutely illegal and, therefore, the recovery has been rightly recalled. Learned A.G.A. has also been heard in opposition to the writ petition.

An interim order was passed on 29.11.2006 herein as due to which the Respondents allege that recovery was sought to be made as per the earlier order dated 28.6.2004. In view of this, with the consent of the parties, the matter is being disposed of finally.

From the aforesaid facts it is clear that the Magistrate proceeded to pass an interim order on 12.10.2001, it is not understood as to how the Magistrate was proceeding to pass an interim order of the nature of an injunction in the proceedings u/s 145, Cr. P.C. Pending such proceedings, the only interim arrangement which can be made by the Magistrate is provided for in Sub-clause (8) of Section 145, Cr. P.C., where the Magistrate is of the opinion that the subject-matter of dispute is likely to undergo a speedy and natural decay. It is only in this event that he can make an order for proper custody and after completion of the custody he is empowered to make such other orders that may be necessary for the disposal of such property. It is, thus, clear that pending proceedings a finding will have to be recorded about the subject-matter of property being amenable to speedy and natural decay and then only an arrangement can be made. The order dated 12.10.2001 does not reflect any such exercise. Further the order of attachment is being passed on 22.10.2001 as an interim measure and the file was put up for detail orders on 24.10.2001. This procedure also does not appeal to reason. The order dated 24.10.2001 is the formal order of attachment u/s 146(1). However, the revision filed against the order dated 24.10.2001 was dismissed holding that the order of attachment u/s 146(1) did not suffer from any infirmity.

The dispute that arose thereafter demonstrates that the allegation with regard to the subsequent appointment of a receiver was raised and both the courts below in the order dated 23.10.2004 and 6.7.2006 have recorded a categorical finding that the Receiver so appointed was allegedly at the behest of the Naib Tahsildar on 20.10.2002 much prior to the formal order being passed on 14.11.2002. The aforesaid finding could not be successfully assailed by the learned Counsel for the Petitioner, who urged that the Respondents had been found liable for making the payment and, as such, neither the Magistrate nor the revisional court could review the situation. The aforesaid argument has to be rejected keeping in view the findings recorded by the Magistrate himself that he had been misled to pass the order dated 28.6.2004 without the correct facts being brought to his notice. In this view of the matter, there is no reason to interfere with the orders impugned. Apart from this, the Petitioner has already filed a civil suit and in case he is aggrieved on account of any action arising out of civil liabilities, it is always open to him to approach the civil court for the redressal of his grievance. The proceedings before the Magistrate would also be subject to any order being passed by the civil court between the same parties. In view of this, I see no reason to interfere in the exercise of the extra ordinary jurisdiction under Article 226 of the Constitution of India.

The writ petition lacks merits and is, accordingly, dismissed.