Mange and others vs State of Haryana

S.C. Malte, J.

This revision is under Section 482 Cr.P.C. challenging the order dated 25.1.1994 passed by the Sub Divisional Magistrate, Panipat, by which he opted to preceded under Section 145 Cr.P.C.

From the submissions from both the sides, it is quite clear that the parties involved in this case are litigating over the issue of possession of the land since 1963. One of the offshoots of the litigation had been decided on 5.2.1969 by decision in Criminal Revision No. 1250 of 1967. The reading of that order clearly shows that it pertained to, in all, three pieces of land totalling 250 Bighas, which is this part in equivalent to 50 acres of land. As if not contented with that branch of litigation, the matter cropped up in the form of proceedings under Section 145 Cr.P.C. and finally came up to this court by way of Criminal Misc 5905M of 1982, which is reported in 1983 PLR 503. In that case this Court made the following observations :

"The Sub Divisional Magistrate, at the same time needs to be advised that if, by a final judgment inter parties, be that of the Civil Court or that of Criminal Court, under Section 145, of the Code of Criminal Procedure, a dispute has been settled once in favour of one party declaring that party to be in possession thereof, then merely because the other party does not submit to that order and keeps raking up the dispute wanting to get into possession of that property or deprive the other party its possession, fresh proceedings under Section 145 of the Code of Criminal Procedure are not to be resorted to, but recourse has to be had under section 107 of the Criminal Procedure. It promotes the rule of law that orders of Courts, whether right or wrong, are strictly to be obeyed and not put to ridicule by assisting a constant agitative approach. This is hardly the purpose which, under Section 145 of the Code of Criminal Procedure, is sought to be achieved."

On considering this previous litigation, it clearly appears that the parties were litigating since long. In addition to that, presently civil suit No. 133 of 1983 is pending before the court. At this juncture, it needs to be clarified that in previous litigation covered by the decision dated 5.2.1969 which is the case reported in 1983 PLR 503, pertained to 50 acres of land as mentioned above. On the other hand, the present case pertains to 587 standard acres. It clearly appears that this dispute between the two sides have arisen because of the change of the river flow which resulted into change of the boundaries of the land. May it be, the fact remains that the present dispute pertains to a big chunk of land admeasuring 587 acres. It would also be a question of fact to be ascertained whether the 50 acres of land covered by the previous litigation between the parties was also incorporated in the present litigation. Presently, I am not concerned with it because that matter would be decided by the Civil Court in civil suit No. 133 of 1983.

In so far as it pertains to the merits of this case, the only question would be whether the Sub Divisional Magistrate was justified in resorting to proceedings under Sections 145 Cr.P.C. A perusal of order passed by him indicates that he has taken into consideration the long chain of litigation between the parties. In the concluding portion, he has observed that the landholders of the two villagers are involved in the litigation, and the enquiries made by him revealed that a tension is mounting on the issue of possession of the land. As the position now stands, the question of possession has become a matter of adjudication because of the controversy raised by both the sides. This circumstance gave an indication to the Magistrate that the villagers on both the sides are likely to conflict on issue of possession, and there is a possibility of breach of peace. Section 145 Cr.P.C. provides that whenever the Executive Magistrate is satisfied from the report of the police Officer or upon other information that a dispute is likely to cause breach of peace concerning any land within his jurisdiction, he shall make an order in writing stating the grounds for his being so satisfied and requiring the parties concerned to attend his court and submit their respective case. By the impugned order, the Sub Divisional Magistrate has thus called upon the parties to submit their case before him. While doing so, he has taken into consideration the previous litigation between the parties. It must not be lost sight of that in the past also matter had reached to the stage of proceedings under Section 145 Cr.P.C. as mentioned above. In the background of that and pendency of civil matter, the Magistrate felt satisfied that he should come forward to maintain peace. The action under section 145 Cr.P.C. depends on the subjective and objective satisfaction of the Executive Magistrate. While dealing with such aspect in the revision proceedings it would not be possible always to substitute subjective and objective satisfaction by this Court. The revisional jurisdiction cannot be exercised simply because some other view is also possible in a case. Particularly, in the case of preventive action, the Executive Magistrate should be left to his discretion to exercise his powers. All that is necessary is to ascretain whether the action taken by him has been based on certain material to satisfy himself. It should not appear to be simply a whim of the Magistrate. On perusal of the order passed by the Magistrate, I find that he has applied his mind and formed his opinion.

While disposing of this petition one more aspect should also deserve consideration. Respondent 17 Bhalla Ram (sic Dhalla Ram) had also preferred a petition under Section 482 Cr.P.C. being Criminal Misc. 1201 of 1991. It was pertaining to prayer for stay to maintain his possession over the disputed property during the pendency of the petition. While disposing of that application, this court on 1.2.1991 passed the following order as reproduced at Annexure R1 :

"The SDM Panipat, shall dispose of the proceedings pending under Section 145 Cr.P.C. before him in this case within three months from the receipt of copy of this order according to law.

The receiver shall lease out the land in question by an open auction after notice in writing to the petitioner who would be competent to offer bid. The lease will be given to the highest bidder.

The petition is disposed of accordingly. It will be stayed in order to implement the above order."

Further, in Criminal Misc. 8599M of 1992, this Court on 28.1.1994 passed the following order:

"The respondent No. 2 has assured that the proceedings pending under Section 145 Cr.P.C. shall be decided on or before 30th of June, 1994. As a consequence of this assurance, the present petition moved under Section 482 of the Code of Criminal Procedure is hereby disposed of."

The counsel for the petitioners submitted that in Criminal Misc. 8599M of 1992 the petitioners had not received notice. May it be, a perusal of these two orders referred above clearly indicates that the property covered by action under Section 145 Cr.P.C. was already in possession of the Receiver. Further respondent No. 2 (S.D.M.) in that matter had given assurance to the Court that the said proceedings shall be disposed of by or before 30th June, 1994. Under these circumstances, I am unable to appreciate the protracting of this litigation by filing the revision petition.

The counsel for the petitioners submitted that since the disputed property was with the Receiver under Section 146 Cr.P.C., he was not in a position to move the civil court for seeking injunction order. If that be the position, the appointment of a Receiver by the Executive Magistrate shall be always subject to decision by the Civil Court, in terms of Clause (2) of Section 146 Cr.P.C.

In my opinion, the issue has been unnecessarily protracted by entangling it in the legal niceties. In view of that, I direct the Sub Divisional Magistrate, Panipat, to take up the matter before him and dispose of it, expeditiously, preferably within three months from the date of receipt of copy of this order. The parties are directed to appear before the Sub Divisional Magistrate. Panipat on 30.10.1996 for further progress in the matter.