Maqbul Hussain vs Syadur Rahman

K. Lahiri, J.—It is difficult to obtain an order of injunction in a civil suit because the party is bound to satisfy the court that there is a prima facie case, the balance of convenience tilts in his favor and also to satisfy the court that if injunction is refused the applicant shall suffer irreparable injury. So many hurdles are to be crossed before obtaining an order of injunction. An order of injunction or prohibitory order takes away certain rights of the party injected. It is indeed difficult to obtain an injunction, but just throw a petition and assert that there is apprehension of breach of peace in respect of the possession of an immovable property, claim for drawing up a proceeding asserting right to possess the property, a proceeding is readily drawn up u/s 145, Code of Criminal Procedure. The proceeding is initiated no matter whether it is a private dispute between the parties or it is a dispute which necessitates drawal of the proceeding for the maintenance of public order and tranquility.

The distinction between the concept of public order, law and order or public tranquility is to be found in the picturesque description drawn by Hidayatullab, J. in Ram Manohar Lohia v. State of Bihar AIR 1964 SC 140. The distinction between the security of State, public order and law and order, i.e., public tranquility, has been, defined by drawing three concentric circles, ''Public order'' comprehends disorders of less gravity than those affecting ''security of State''. "Law and order" comprehends disorder of less gravity than those affecting ''public order''. One is to close his eyes and take three concentric circles. Law and order represent the largest circle within which is the next circle represent lag public order and the smallest circle represents security of State. It is then easy to visualize that an act may affect law and order or public tranquility but not public order just as an act may affect public order but not security of the state. Public order means the even tempo of life of the community even in a specified locality. Disturbance of public order is to be distinguished from acts directed against individual which do not disturb the society to the extent of vibrating a general disturbance of public tranquility. If a party illegally and forcibly occupies the land of pother, people way be shocked and even mentally disturbed but the life of the community may keep on moving keeping peace with the even tempo of life of the community. If by the act of dispossession even tempo of life of the community is disturbed or jeopardized, it may be a case of disturbance of public order and tranquility. The acts of private parties with affect personal rights and obligations only but do not disturb the even tempo of the society are merely private feuds for which action may not be necessary to be taken under Chapter-X of the Code of Criminal Procedure. Section 145 of ''the Code'' clearly states that to assume jurisdiction the Magistrate must be satisfied that the dispute is likely to "a breach of peace". It is not a breach of mental peace of the parties but apprehended breach of peace in the locality. Ordinarily, a person dispossessed of property must sue for recovery of specific immovable property u/s 5 and 6 of the Specific Relief Act and if there is threat to dispossess him be should institute a suit to obtain injunction. These are forum for establishing the right of the litigants. A proceeding u/s 145 Code of Criminal Procedure is, therefore, an extraordinary provision to grant extra-ordinary relief when there is likelihood of breach of peace in the locality. The final order of magistrate is subject to the decision of the civil Court. It is, therefore, seen that private dispute between two persons which does not disturb law and order or occasion a breach of the peace in the locality the forum for getting relief is the civil Court of competent jurisdiction. Now, what I find all around is that just on some pretext or pretence flood of proceedings u/s 145 Code of Criminal Procedure are entering in courts like flood water entailing wastage of public money and'' public time, Before taking up a proceeding u/s 145 of the Code the Magistrate must be careful, cautious, circumspect and slow. The quintessence of the decision of the Supreme Court In Ram Sumer Puri Mahant v.State of U.P. AIR 1985 SC 412 is to discourage proceedings u/s 145 of the Code as far as possible. It is necessary to avoid multiplicity of litigation which is against the interest of the parties and in most of" the cases public time is waited over meaningless and unnecessary proceedings. In Ram Sumer (supra) a note of warning has been sounded by the Supreme Court that the Magistrate should initiate proceedings u/s 145 of the Code when the essential elements of the section are found to be present in the case. However, these are my passing observations.

Let me turn to the facts of the case. The Petitioner claims that he was in possession of 1 Katha 10 Lachas of land described in the petition, Which be purchased from his wife Sharifa Begum, who delivered pollution of the property in the capacity of attorney of Mrs. Merjins Laskar, wife of Amir Khusru Laskar. The sale deed was executed by Sharifa Begum, The Petitioner constructed bamboo fencing around the land, paid land revenue and local rate, but suddenly the opposite party Syadur Rabman @ Bakul, constructed a thatched house on the land and claimed right, title and possession. The Petitioner filed an application claiming that there was apprehension of breach of peace between him and Syadur Rahman. A proceeding u/s 145 Code of Criminal Procedure was drawn up. However, ultimately the case came up before fore the Sub-divisional Magistrate (Executive), who upon consideration of the facto and circumstances of the case reached the conclusion that it was not a matter covered u/s 145 of the Code and directed the Petitioner to take resort to civil action. Indeed ''the Petitioner is not remediless. He could institute a suit under the Specific Relief Act and/or institute a suit and obtain an injunction, if he has t case. The Petitioner, it is alleged, did not filer a regular revision before the court of Session. A letter assent to the learned Session Judge to entertain and call for the records of the case. The petition, which was sent by post accompanied by the certified copy of the order of the Sub divisional Magistrate was hopelessly barred by limitation. Admittedly there was no application for condoning the delay. Learned Judge held that it was barred ''by limitation. Learned Judge also extracted the order of the Magistrate dropping the proceeding which reads as under:

Called back the case record from the court of the E.M. Perused the Police report. It is seen in the report that the land in question is under the possession of 2nd party last 15 years. Hence the court does not have any jurisdiction to try this. The aggrieved 1st party may seek redress in the proper Court of law. Hence the Proceeding is dropped. Inform O.C. N.L. P.S. accordingly.

(Emphasis supplied)

It is thus clear that the police upon which the Proceeding u/s 145 of the Code was drawn up clearly stated that the second party had been in possession of the land since last 15 year. Where was the case of the first party? Where was the jurisdiction of the learned Magistrate to draw up the proceedings on the basis of the police report? As such, the order of the learned Magistrate must be held to be absolutely correct and justified. He was absolutely justified in saving the misfiles and agonies of both the parties. The learned Magistrate had no jurisdiction to entertain the proceeding u/s 145 Code of Criminal Procedure on the basis of the police report.

For the foregoing reasons I hold that there is no merit in the application, Accordingly, it is dismissed in limine.