Kamal Dai vs Ram Saran and Others

Sunil Hali, J.—Through the medium of this petition u/s 561-A Cr.P.C, petitioner seeks quashment of order dated 17.04.2004 passed by the

Tehsildar, Mahore by virtue of which land under Khasra No. 179 measuring 6 kanals has been kept on the supurdnama of Panchayat Halqa,

Dhanoure.

It is averred in the petition that the land situates under Khasra No. 179 measuring 6 kanala originally belonged to one Vijay Ram son of Jawahar

who executed a Will in favour of the petitioner. Mutation No. 762 dated 14.05.2003 was also attested in favour of the petitioner in pursuance of

the said Will.

That an application came to be filed by respondent No. 1 seeking protection of dispossession from the land in question before Naib Tehsildar,

Arnas,' who in his report submitted to the Tehsildar, Arnas recommended attachment of the property of the petitioner. On the recommendation of

Naib Tehsildar, Tehsildar Arnas attached the property of the petitioner and kept the same on the supurdnama of Sarpanch of Panchayat Halqa

Dhanoure vide order 17.04.2004. It is this order which is subject matter of challenge before this Court.

I have heard the learned Counsel for the parties and perused the record. Before initiating proceedings u/s 145 Cr.P.C., a preliminary order has

to be drawn by the Magistrate concerned, which contains the following ingredients:

a) That a dispute is likely to be cause breach of peace exists in respect of the land.

b) He must record the satisfaction in the order that the dispute is likely to cause breach of peace in the area.

c) That the said satisfaction has to be arrived on the report of police or any other agency as also on the basis of the record which is before the

Magistrate that he should send a notice to other side to submit the objections.

After framing preliminary order, the Magistrate under proviso to sub clause 4 of Section 145 Cr.P.C. can order attachment of the property. So

in order to sustain u/s 145 Cr.P.C. provisio to sub clause 4, it is necessary that preliminary order has to be framed by the Magistrate, who

thereafter can exercise its jurisdiction u/s 145 Cr.P.C. No order of attachment can be passed unless preliminary order is drawn which satisfies the

conditions laid down in the Act. In the present case, Tehsildar, Arnas without framing preliminary order directed attachment of the property of the

petitioner and ordered that the said property to be kept on the supurdnama of Sarpanch of Panchayat Halqua, Dhanoure. This direction in my view

is without jurisdiction. The Magistrate could not have issued such directions while initiating proceedings u/s 145 Cr.P.C.

In view of the above, I find force in this petition, which is, accordingly, allowed. Order dated 17.04.2004 is quashed. It is further directed the

attached property be handed over to the petitioner by the Supurdar. Disposed of along with connected Cr.M.P(s), if any.