Kamalpur Gitalpur Ex-Servicemen Co-operative Tenants Farming Society Limited vs State of Haryana

S.S. Grewal, J.

This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'') relates to quashment of order passed by the Additional Sessions Judge, Karnal dated 25th February, 1989 (Annexure P2), whereby on revision the order passed by the Sub Divisional Magistrate, Karnal on 29th August, 1988 (Annexure P1) for attachment of the land in dispute and appointment of Receiver under Section 146(I) of the Code was set aside.

In brief, the facts relevant for the disposal of this petition are that proceedings under Section 145 of the Code were initiated on 30th June, 1988, on the allegations that there was a dispute between the parties with regard to the possession of the land in dispute, situated within the revenue estate of village Gitalpur, and there was apprehension of breach of peace. Notice under Section 145(1) of the Code was issued by the Sub Divisional Magistrate in these proceedings. Both the parties appeared before the Sub Divisional Magistrate on 11th July, 1988. They filed written statements and documents concerning proof that they were in possession of the land in dispute. During pendency of these proceedings, Darshan Singh, member of one of the parties, filed a civil suit on 16th July, 1988, and on 20th July, 1988 the Civil Court ordered both the parties to maintain status quo. The Sub Divisional Magistrate, vide his order dated 29th August, 1988 came to the conclusion that there was a dispute between both the parties in respect of the land in dispute, and, there was apprehension of breach of peace. The Sub Divisional Magistrate, while taking into consideration the order passed by the Civil Court, directing the parties to maintain status quo, passed the order of attachment of the land in dispute under Section 146 of the Code, and appointed S.H.O. Butana (within whose jurisdiction the land in dispute fell) as Superdar. Both the parties were further directed to get a decision from the Civil Court about possession of the landindispute in order to avoid duplication of proceedings concerning determination of possession. The Superdar was directed to deliver the possession of the land, in dispute, in accordance with the decision of the Civil Court, to the party concerned.

Counsel for the parties were heard.

The impugned order passed by the Additional Sessions Judge has mainly been assailed by the learned Counsel for the petitioner on the ground that the Sub Divisional Magistrate had independent jurisdiction to continue proceedings, under Sections 145 and 146(1) of the Code, irrespective of the pendency of civil litigation between the parties concerning the same subjectmatter, and that the order of attachment and appointment of Receiver, passed by the learned Sub Divisional Magistrate, in the instant case was perfectly legal and valid, and the same could not be legally set aside.

There is no dispute with the proposition of law that if the Magistrate at any time after making the order under subsection (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof, as contemplated under Section 146(1) of the Code. The impugned order passed by the Magistrate does not specifically mention that either it is a case of emergency or that none of the parties was in possession of the land in dispute, as is referred to in Section 145, or that he is unable to satisfy himself as to which of the two parties was in possession of the land in dispute, before the learned Sub Divisional Magistrate passed the order of attachment and appointment of Receiver in the instant case. It is true that while passing the order under Section 145 of the Code the Sub Divisional Magistrate had come to the conclusion that there was a dispute between both the parties, in respect of the land in dispute, and, there was apprehension of breach of peace. The fact remains that these conclusions are quite vague, and do not necessarily indicate that the Magistrate had considered the case to be one of emergency, as contemplated under Section 146(1) of the Code. This aspect of the case finds further support from the fact that the learned Sub Divisional Magistrate instead of proceeding with the case in order to decide as to which of the two parties was in possession of the land in dispute at the relevant time, directed both the parties to get the matter adjudicated upon by the Civil Court. The question that none of the parties was then in possession, as referred to in Section 145 of the Code, or, that he was unable to satisfy himself as to which of the two parties was then in possession of the land in dispute, do not find any mention, whatsoever, in the aforesaid order passed by the Sub Divisional Magistrate. The Sub Divisional Magistrate, thus, could not pass any legal or valid order of attachment, or appointment of Receiver in respect of the land in dispute. However, the learned Magistrate could not stop, or close the proceedings under Section 145 of the Code after passing the impugned order of attachment, as held in Single Bench authority of this court in Jaswant Singh v. State of Punjab, 1987(1) Current Law Journal 357, and the Supreme Court authority in Mathuralal v. Bhanwarlal and another, AIR 1980 SC 242.

Mere fact that the civil suit between the parties, with regard to the subjectmatter of the present suit, is still pending before the SubJudge, would, per se, be no ground to hold that the Sub Divisional Magistrate could not initiate or decide the proceedings under Section 145 of the Code. The fact remains that the present petitioner did not challenge the order passed by the learned Sub Division Magistrate on 29th August, 1988. To rectify this defect, inherent jurisdiction cannot be exercised in the instant case, particularly when the Civil Suit regarding the same subject matter, between the parties, is pending, and such disputes can more effectively be adjudicated upon by the Civil Court, whose judgment, ultimately, would be binding between the parties.

For the foregoing reasons, this petition is dismissed.