Jai Singh & others vs State of Haryana

M.M. Punchhi, J

This is a petition under Section 482 of the Criminal Procedure, seeking indulgence of this Court to quash proceedings under section 145, Code of Criminal Procedure, for, suggestedly there is abuse of the process of the Court.

Broad facts giving rise to this petition are these:

A piece of agricultural land measuring 96 Kanals 15 Marlas situated in village Jakholi was reserved during consolidation operations and put in the ownership of the proprietary body described as JUMLA MALKAN VA HAODARANARAZI. Petitioner Nos. 1 and 2 Jai Singh and Nafe Singh on one had ( Petitioner No. 3 being their supporting brother) and petitioner No. 4 Baljit Singh likewise, lay claim to its possession, as according to them, the revenuepapers disclosed that they were cultivators in possession of the said land. Apprehending some threat to their possession, Nafe Singh and Jai Singh on 15.6.1983 filed a suit for permanent injunction against the Gram Panchayat Jakholi through its Sarpanch, who had laid claim to ownership and possession of the said land. They also filed an application for temporary injunction. The same was allowed exparte on 15.6.1983 vide order Annexure P1. It was extended till further orders on 18.7.1983 vide order Annexure P2. Subsequently on 24.12.1983 the Sub Judge Ist Class, Kaithal, who was in seisin of the matter, returned the plaint to the plaintiffpetitioner Nos. 1 and 2 holding that the Civil Court had no jurisdiction. They approached the District Judge in appeal and reiterated their prayer for a temporary injunction. The same was granted on 30.12.1983 vide order Annexure P4. Finally, the order of the learned Sub Judge returning the plaint was set aside by the Additional District Judge on 6.4.1984 vide judgement Annexure P3, holding that the property described as JUMLA MALKAN VA HAODARANARAZI did not vest in the panchayat and as such the Civil Court had jurisdiction to entertain such a suit, for, there was no question therein to determine whether the land in dispute was shamlat deh or not. This order became final and there was no challenge to it. Subsequently, the matter was put up before the learned Sub Judge on 2041984 and then on 16.5.1984. Vide order on the file, but unannexured, status quo was ordered to be maintained till further orders. That order of status quo is even today operative as stated at the Bar.

For an identical relief, Baljit Singh petitioner. 4 also filed a civil suit for permanent injunction and obtained an ex parte injunction on 7.4.1984. That order too is stated to be operative till today.

In the meantime, the Gram Panchayat in assertion of its rights that the land in dispute vested in it, filed an application for eviction against the petitioner before the Assistant Collector, Kaithal, under section 7 of the Punjab Village Common Lands(Regulation) Act, as applicable to Haryana. An order was passed in favour of the Gram Panchayat on 17.11.1983. As claimed by the Panchayat, in execution thereof, it obtained the possession of the land on 28.11.1983. These dates speak for themselves, as despite the claim of the possession of the Panchayat that it had obtained possession of the land in dispute, the Civil Court granted orders of maintenance of status quo on the basis of cross assertions of the parties that each of them was in possession of the land in dispute. It is also significant that on 28.11.1983 when the Panchayat claims to have obtained possession there was a restraint order against it as passed by the Sub Judge Ist Class, Kaithal, and the plaintiff petitioner had not to be forcibly dispossessed therefrom. But as claimed by the Panchayat, it obtained possession of the land in dispute in due process of law.

Another leaf to the chapter is that the local police made report to the Executive Magistrate, Kaithal, intimating that there was a dispute likely to cause breach of peace over the possession of the land in dispute between Jai Singh, Nafe Singh, Dhera and Baljeet on the one side arrayed as the second party and the Panchayat though its Sarpanch arrayed as the First party on the other. The Executive Magistrate on 29.1.1985 passed order Annexure P5 passing a preliminary order under Section 145(1) of the Code of Criminal Procedure, summoning the parties to appear before him in an enquiry for the purpose. At the askance of the Gram Panchayat to attach the land in dispute, the learned Magistrate on 20.3.1985 vide order Annexure P6 attached the land in dispute under section 146 of the Code of Criminal Procedure, and appointed the Naib Tehsildar, Kaithal, as a receiver thereof. It is further claimed by the Panchayat that the receiver took possession of the land in dispute on 21.3.1985 vide daily report No. 235 and as stated at the Bar by the learned counsel for the respondents, delivered possession thereof to third parties on 6.7.1985 vide daily diary report No. 362.

In the meantime, the petitioner challenging the initiation of proceedings under section 145 of the Code of Criminal Procedure, and the attachment order, filed the present petition. It came up for motion hearing on 29.3.1985. On admission, further proceedings in the matter were ordered to be stayed. Despite clear orders to that effect, the receiver went on, in disobedience thereof, and is alleged to have delivered possession thereof to third parties, ignoring that the property in dispute was custodia legis and he had to abide by the directions of this Court.

`The petitioner''s claim is that the property in dispute is still in their possession on the strength of the orders of the Civil Court ordering maintenance of status quo. It is further claimed by them that when the Civil Court was, since 15.6.1983 seisin of the matter, there was no occasion for the Executive Magistrate to initiate proceedings on 29.1.1985 and cause annoyance and intimidation to the petitioner by interfering in their possession over the land in dispute. On the other hand, as indicated earlier, the respondents maintain that they had obtained possession under orders of the Assistant Collector and now the land is in possession of third parties at the behest of the receiver.

It is well known that the crucial date for the purposes of determining in whose possession the land in dispute was would be 29.1.1985, the day when the learned Executive Magistrate passed the preliminary order. Now on that date concededly two orders of status quo regarding possession were operative as passed by the Civil Court in the respective suits of petitioner Nos. 1 and 2 as also of the petitioner No. 4. The order of Status quo as is plain from the order dated 16.5.1984 unannexured was passed in the presence of the parties, counsel. Thus, both parties were bound by that order. Thus, the specific order of the Civil Court was that whichever party was in possession of the land in dispute, that party had to remain there till further orders. In the peculiar situation of this case, the passing of the order under section 146 of the Code of Criminal Procedure on 20.3.1985 vide Annexure P6 was nothing but an attempt to undo the spirit of the order of the Civil Court by dispossessing the party whosoever was in possession of the land in dispute. No fault can be found with the order of the Executive Magistrate in so far as it related to the initiation of proceedings under section 145 of the Code of Criminal Procedure vide order Annexure P5. But the learned Magistrate''s effort to snatch the property from the hands of either party and place it in the hands of the receiver in the peculiar circumstances of the case, appears to me nothing but an abuse of the process of the Court. If the learned Magistrate was apprehensive of any breach of peace in the interregnum, then the most appropriate weapon in his hand would have been the employment of Section 107 of Criminal Procedure Code. Conscious of that he had even applied that provision in the first instance in the year 1984 and then took resort to attachment under section 146 of the Code of Criminal Procedure. It is only in the pursuit of that order that the receiver further committed the illegality in the suggested transfer of possession to third parties. That step too takes the colour and hue of the order passed under section 146 of the Code of Criminal Procedure and has to go the way the parent order has to go.

For the aforegoing discussion, this, petition partially succeeds. Proceedings under section 145 of the Code of Criminal Procedure may go on for the present and the learned Magistrate may even have resort to proceedings under section 107 of the Code of Criminal Procedure apprehensive of breach of peace, but the order under section 146 of the Code of Criminal Procedure and all subsequent proceedings based there on are quashed.

JUDGMENTed accordingly.