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Judgment
Guman Mal Lodha, J.—These are three petitions. Petitions Nos. 121 and 142 of 1986 were already listed before this Court and on the joint request of the learned counsel for the parties, the third petition No. 120 of 1986 was also got listed, as the point involved in all the three petitions is the same, and all of them relate to the validity of the reference made by the Additional District Magistrate-cum-City Magistrate, Udaipur on March 27, 1986, to the Additional District Judge, No. 1, Udaipur.
The present is a very unfortunate litigation where the property of late Maharana Bhagwat Singh of Udaipur is the subject-matter of internal feud between the two sons and their mother. In Rajasthan area, there are three house-properties viz. (1) Shambhu Niwas Palace; (2) Fateh Prakash Palace having ground-flooor Darbar Hall; and (3) Shivniwas Palace, and the bone of contention is about the ownership, acquisition, and possession and other ancillary rights to the above properties.
It is not necessary to mention the facts in detail because, earlier judgments of this Court, in S.B. Criminal Revision Petitions No. 456/84, 14/1985 and 15/1985, decided on March 18, 1986, mentions in detail as to how the dispute arose and the Criminal proceedings started under Sections 145 and 146, Cr. PC. In short, and sweet, by order dated March 18, 1986, this Court quashed the proceedings u/s 145, Cr. PC. The operative portion of the order is as under:
As already stated that as the matter is pending in the Civil Court and interim orders have been passed, it would not be proper to allow the Criminal Proceedings to continue. In my opinion, the Criminal Proceedings deserve to be quashed. Accordingly, the Revision Petition No. 456 of 1984 is allowed and the proceedings u/s 145 Cr. PC are quashed.
As a legal and logical corollary of the above, a Receiver, which was appointed during the proceedings u/s 145, Cr. PC was required to quit and release the property. However, the Additional District Magistrate-cum-City Magistrate found difficulty because according to his version, the Receiver wanted to know, to whom the possession should be given and since at the time of taking over of the possession, it was not mentioned from whom the possession was being taken, both the Receiver as well as the Additional District Magistrate-cum-City Magistrate, were in a fix to issue necessary directions.
It appears that because of the feud and dispute relating to the succession to late Maharanas of Udaipur and the property being of great value, the Additional District Magistrate-cum-City Magistrate moved the Additional District Judge No. 1, Udaipur mentioning the above facts and requesting him that:
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Against this application, the present three Miscellaneous Petitions have been filed and in all the three petitions, a prayer has been made to quash this application.
The short point argued by Mr. M.M. Shinghvi in support of his petition and prayer for quashing the above application or so called reference by the Additional District Magistrate cum-City Magistrate to Additional District Judge No. 1, Udaipur, is that once the proceedings u/s 145 Cr. PC are quashed by the High Court, there are no residuary powers left with the Criminal Court for moving such application to the Civil Court where other Civil cases are pending between the parties.
Section 146. Cr. PC is as under:
Power to attach subject of dispute and appoint receiver.-
(1) If the Magistrate at any time after making the order under Sub-section (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;
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute;
(2) When the Magistrate attaches the subject of dispute, he may if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a Receiver thereof, who shall have; subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1980;
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate- (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just.
I enquired from the learned counsel for the respondents whether there is any provision of law under such application can be moved by a criminal court before the civil court where several disputes between the parties are pending regarding that very property. Obviously, since there is no such provision under the Cr. PC learned counsel could not point out any provision of law under which such an application can be moved. Sec. 146 in terms, no where contemplates moving of such application because Section 146 contemplates cases of emergency and, thereafter withdrawal of attachment under the proviso. Sub-Clause (2) of Section 146 comes into play if Receiver is appointed by the civil court.
In the instant case, it is admitted by all the learned counsel, that at the moment till today, no Receiver has been appointed by the civil court. In the orders passed on the applications for appointment of Receiver, various directions have been given regarding the functioning of the parties in relation to the properties, but there is no order for appointment of Receiver. It is always permissible for the civil court to appoint Receiver, if a proper case is made out and non-appointment of Receiver by the civil court is to be noticed by this Court as a fact only.
fn view of the fact that no Receiver has been appointed, so far inspite of the various efforts of the parties and this Court was persuaded to quash the proceedings in the criminal court on the ground that civil court is seized of the matter and interim orders have been passed making some arrangements; therefore, the forum of criminal court could not be utilised.
I have, therefore, got no hesitation in holding that the application moved by the Additional District Magistratc-cum-City Magistrate to the Additional District Judge No. 1, Udaipur on March 27, 1986, which is sought to be quashed in all the three cases before this Court now, was wholly misconceived under the law, although it was well-intentioned and may be for bonafidc reason of the District administration to avoid any unforeseen event or incidents. There is no manner of doubt that such application cannot be entertained either u/s 146 Cr. PC. or under any provisions of law by civil court from a criminal court after the proceedings u/s 146, Cr. PC have been quashed and no proceedings u/s 146 Cr. PC. are pending any where.
The ancillary provision of Section 395, Cr. PC. was referred by the learned counsel for the respondents, but, obviously, it refers to the reference to the High Court in very different situations and, therefore, it cannot be availed of so far as the present case is concerned.
The result of the above discussion is that I have got no option but to quash the application-cum reference made by the Additional District Magistrate cum-City Magistrate dated March 27, 1986 to the Additional District Judge No. 1, Udaipur, as it tantamounts to abuse of the process of court and, therefore, it requires interference u/s 482, Cr.PC by this Court. Consequently, the same is quashed.
Mr. H.M. Parekh and S.K. Goyal and so also Dr. S.S. Bhanda-wal, Addl. Govt. Advocate, at this stage pointed out that there is apprehension of lot of blood-sheding and breach of peace if this Court leaves the matter here by quashing the reference-application without giving any guidance or direction. Fortunately, this Court had occasion earlier to consider such situation in Ramlal v. Mangu 1960 RLW 37 where in it was observed as under:
Whenever it is made to appear to a Magistrate, or he comes to that conclusion suo moto, that there never was an> likelihood or there is no further likelihood of a breach of the peace relating to a dispute as respects land or other immovable property within the meaning of Sub-section (1) of Section 145 Cr. PC. it is open to the Magistrate while dropping the proceedings and removing the attachment to make an incidental order to restore possession to the party or parties from whom it had been taken at the time of attachment, and the Magistrate cannot possibly be said to be functus officio when he passes any such orders;
Once it is accepted that the Magistrate has the authority to pass all incidental orders when he drops the proceedings under Sub-section (5) of Section 145, there can be hardly any objection in principle to his passing such an order subsequent to the order by which he drops the proceedings within a reasonable time of his having done so.
In other words, the Magistrate can restore the possession to a party from whom possession was taken at the time of attachment provided there is clear material on the record to show that. Where, however, there is no such material, the Magistrate must rest content with the passing of an order removing the attachment and leave th? parties to seek their remedy in a proper court of law.
The Additional District Magistrate-cum-City Magistrate would be well advised to follow the guide-lines given in the above judgment in Ramla v. case (supra). Even then, I would, in the interest of justice, direct that the SHO, who is Receiver and who is required to release the property from his possession should do it on expiry of one month from today. During this period, the civil court concerned where the cases are pending between the parties, would be at liberty to decide the application for appointment of Receiver, if any is pending. The parties would be at liberty to move any other application before the civil court, because there cannot be any restriction on it.
It is expected that if situation so warrants, the civil court would decide the application, according to law. It is also expected that the civil court seized of the matter, would first keep itself aware and alive of the earlier orders passed while rejecting the applications for appointment of Receiver and then in that context and back-ground, consider the applications either already pending or if filed, promptly.
It is made clear that so far as the Receiver appointed in the proceedings u/s 145, Cr.PC is concerned, i.e. SHO, Ghantaghar, he would cease to be Receiver on the expiry of one month from today and would release all the properties, which he took into possession.