Lachman Gir vs State of Haryana

G.S. Chahal, J.

Lachman Gir and another, by means of this petition under Section 482 Cr.P.C. seek quashing of order dated September 3, 1991 passed by SDM Karnal, where the land in dispute had been attached and receiver had been appointed. The petitioners also seek quashing of the entire proceedings under Sections 145 and 146 Cr.P.C.

Proceedings before the Magistrate were initiated on the basis of calender Annexure P5. The report made by the police, when quoted, reads as follows :

"In brief the facts of the present calendera are that there is a Shiv Mandir at village Bibipur Jattan which owns 129 kanals 12 marlas of land comprised in Khewat No. 256/243, Khatauni No. 340. The Poojari of this mandir is Lachman Gir Chela Shanti Gir. The girdawari of all the land is continuing in the name of Lachman Gir. Lachman Gir gets cultivated all the above said land from Ram Kumar, Suresh, Desh Raj sons of Gobind, Pirthi son of Kura Ram, Naresh son of Pat Ram, Hari Ram son of Sadhu Ram. Parkash Puri and Shiv Puri also use to live with Lachman Gir in the Mandir. Lachman Gir got a decree regarding above land in his name through a suit from the Court of Sh. S.S. Lamba, Sub Judge, Karnal and the mutation has been sanctioned in the name of Lachman Gir on 26.6.1991. Jug Lal etc. of village Bibipur Jatan opposed the above said decree and now they say that the decree of above land has been obtained by Lachman Gir wrongly as the owner of all the above said land is Shiv Mandir, Bibipur Jattan and they doubt that Lachman Gir will lease out the above land to some one person. Both the parties are now firm on their respective stands. There is some sugarcane standing on some part of this land and on some of the land the Ziri crop has been sown. Lachman Gir says that the income from the crops on this land will be spent by himself. But Jug Lal etc. say that there should be a committee of this Mandir and that committee will spend the income from the crops on this land and there is tension between both the parties on this and a serious crime may take place over this land at any time. Therefore, through the present calendera, it is prayed that all the above land measuring 129 kanals 12 marlas be attached at once and the warrants of attachment be issued against both the parties so that any kind of dispute may not take place. The calendera under Sections 107/151 Cr.P.C. is being prepared against both the parties and is being submitted to the Court separately. The photostat copy of `Fard'' of this land measuring 129 kanals 12 marlas and the photostat copy of mutation are attached and it is prayed that according to the record on the basis of the annexed documents, the numbers mentioned therein, may be attached under Section 146 Cr.P.C. and the following witnesses be directed to appear by issuing summons against them."

Admittedly, the land in dispute is owned by an idol and in the jamabandi, it is recorded in the name of Mandir while in the column of cultivation as Lachman Gir Chela Santi Gir chela Lal Gir Saqin Deh Gair Morusi and in column of rent as Bila Lagan Bawazah Sewa Mandir. These entries are so recorded in jamabandi for the years 198283 Annexure P.9 and 198788 P.10. Lachhman Gir had brought a civil suit and obtained a decree Annexure P1 in which general public was impleaded. Validity of this decree has, however, been challenged in civil suit No. 361/91 and an injunction order was passed therein dated July 26, 1991 Annexure P.2. It is, however, conceded at the bar that this injunction had been vacated and suit was brought by Jug Lal and others and the suit is numbered 386/91 and was instituted on July 30, 1991 and is Annexure P.3. However, Lachman Gir has not been impleaded as one of the defendants in that suit. Jug Lal and others in that suit claimed themselves to be the members of Managing Body of the Mandir.

A bare reading of the calendera shows that the only dispute regarding which the police took cognizance was with respect to the utilisation of the income of the land and while Lachman Gir was claiming that he will spend the amount on himself, Jug Lal and others claim that the committee should utilise the income. Section 145 Cr.P.C. provides for taking of cognizance by the Executive Magistrate if he is satisfied that there is dispute likely to cause breach of peace concerning any land or water or boundaries thereof, and after issuing notice, he has to call upon the parties to file their respective claims as "respects the fact of actual possession of the subject of dispute. After making inquiry as provided by subsection (2), (3) and (4) of the aforesaid Section, he has to decide whether any and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subjectmatter of dispute.

In the present case, the police report does not show that there was a dispute with respect to the possession of the land. The entire dispute relates to the utilisation of the income of land. The Magistrate has no power to decide that matter. That matter can only be gone into by a civil Court. Since the respondents had already gone to the civil Court and the civil Court is seized of the matter, the proceedings under Section 145 Cr.P.C. were not justified. The respondents can obviously seek their remedies from the civil Court with respect to the management of the land owned by the Mandir, the utilisation of its income or formulation of any scheme for management of the Mandir. Since the suit is already pending, the respondents shall have enough opportunity of seeking redress of their grievances which they may have against Lachman Gir for utilisation of the income. I am unable to agree with the argument of Sh. Kheterpal that the petition is premature and in the first instance, the petitioners should have gone to the Executive Magistrate for filing their respective claims under Section 145 Cr.P.C. Since I am of the view that there was no dispute which could be decided under Section 145 Cr.P.C., the petitioners were not obliged to go to the Executive Magistrate for filing their reply. Continuation of the proceedings under Section 145 Cr.P.C. in the light of the above facts amount to the abuse of process of court.

I hereby accept the petition and quash the entire proceedings on the basis of Calendera Annexure P5. With this direction, the petition stands disposed of.