Mst. Dhan Kaur vs State of Rajasthan

Navin Chandra Sharma, J.—This is a petition u/s 482, Cr. P.C. by Mst. Dhan Kaur for quashing the order of the Sub-Divisional Magistrate, Hanumangarh dated March, 31 1987 which was affirmed by the Additional Sessions judge No. 1 Hanumangarh by his order dated August 19, 1987.

Facts of the case are not in dispute. Proceedings u/s 145, Cr. P.C. were initiated by the Sub-Divisional Magistrate, Hanumangarh. The dispute related to agricultural land situated in chak 13 GGR, Stone No. 192/285 and Killa E 9 to 13 measuring 5 Bighas and Killa No. 14 measuring 15 Biswas, in all 5 Bighas, 15 situated in village Masani, Tehsil Tibi, District Ganganagar. After making the order under sub Section (1) of section 145 the sub-Divisional Magistrate passed an order under Sub-section (1) of Section 146, Cr. P.C. and attached the said agricultural lands and appointed Tehsildar, Tibi as receiver over the said lands on November 29, 1985. Both Mst. Dhan Kaur and non-petitioner No. 2 Sher Singh respectively filed Criminal Revisions Nos. 16/86 and 18/86 in the Sessions Court. It was not in dispute between the parties before the Additional Sessions Judge No. 1, Hanumangarh that both the sides have already filed revenue suits in the competent revenue court for determination of their respective rights to these agricultural lands. Following the decisions of their Lordships of the Supreme Court in Ram Sumerpuri Mahant v. State of U.P. and Ors. reported in 1985 Cr. L.R. (SC) 9 and that of this Court in Arvind Singh v. State of Rajasthan reported in 1986 RLR 306, the Additional Sessions Judge held that since the parties have already approached the competent court, proceedings u/s 145, Cr. P.C. could not continue. He, therefore, accepted both the revisions and set aside the order of the Sub-Divisional Magistrate, Hanuman Garh dated November 29, 1985 by his order dated December 6, 1986. After the order of the Sub-Divisional Magistrate dated November 29, 1985 was quashed by the Additional Sessions Judge No. 1, Hanumangarh, the Sub-Divisional Magistrate, Hanumangarh by his order dated December 10, 1986 discharged the receiver and directed that the receiver will hand over the possession of the agricultural lands, which had been taken by him under his control after attachment, may be handed over to the party from which possession was taken. It appears that the Inspector, Land Records, Shereka submitted a report to the Tehsildar, Tibi that after the order appointing receiver was passed, possession of the standing crops was taken on July 27, 1985 by him along with the Patwari. It was mentioned that Mst. Dhan Kaur was a widow aged 55 or 60 years.

There was no member in his family who could cultivate the lands. During the year 1985-86 Mst. Dhan Kaur had got the lands cultivated through Mohar Singh s/o Nand Singh on share-crop basis. He, therefore, reported that accordingly possession over the lands was that of Mst. Dhan Kaur when the receiver took over the possession under the order of the Sub-Divisional Magistrate. In pursuance of order of the Tehsildar, Tibi dated December 19, 1986, the Patwari, circle Shereka handed over possession of the said lands to Mst. Dhan Kaur on that date after receivership was discharged by the Sub-Divisional Magistrate.

On December 23, 1986 Sher Singh non-petitioner No. 2 made an application before the Sub-Divisional Magistrate that the receiver had taken possession of these fields from him and he was not returning its possession to him and was delivering possession to Mst. Dhan Kaur. Sher Singh asserted that on basis of the revenue records he was in possession over these fields at the time when the receiver took possession. The Sub-Divisional Magistrate gave notice of the application of Sher Singh to Mst. Dhankaur. After giving opportunity to the parties to produce evidence and after hearing them, the Sub-Divisional Magistrate came to the conclusion that at the time the receiver had taken possession of these fields on July 27, 1985, the lands in question were in possession of Sher Singh and not of Mst. Dhankaur. He, therefore, passed the impugned order on March 31, 1987 directing the receiver to hand over the possession of these fields to non-petitioner No. 2. Against this order, Mst. Dhankaur filed criminal revision No. 43/87 which was dismissed by the Additional Sessions Judge No. 1, Hanumangarh on August 19, 1987. Petitioner Mst. Dhan Kaur has prayed for quashing of both the orders of the Sub-Divisional Magistrate as well as that of the Additional Sessions Judge No. 1, Hanumangarh.

Notice of this petition was given to the non-petitioners and their counsel were heard. Learned counsel for the petitioner Mst. Dhankaur strenuously argued that the receiver had already delivered possession of the agricultural fields to Mst. Dhankaur on December 19, 1986 under the orders of the Sub-Divisional Magistrate, Hanumangarh dated December 10, 1986. No further proceedings, therefore, could lie and the Sub Divisional Magistrate had no jurisdiction to pass the impugned order on March 31, 1987 directing delivery of possession of these fields to non-petitioner No. 2. Section 146 Cr. P.C. does not contain express provision as to what the receiver should do in cases where the Executive Magistrate withdraws the attachment and removes the receivership. Sub-section (2) of Section 146 Cr. P.C. provides that when 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, 1908. Proviso to Sub-section (2) of Section 146 Cr. P.C. states 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 possession 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. Proviso to Sub-section (1) of Section 146, Cr PC states that the Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of peace with regard to the subject of the dispute.

In the present case, the Sub-Divisional Magistrate had not withdrawn the attachment and had not removed the receivership of the Tehsildar, Tibi on the ground that there was no longer any likelihood of breach of the peace with regard to the subject of dispute. It is also not a case where a receiver had been appointed in relation to the subject of dispute by the Revenue Court. It is a case where because both the parties had filed revenue suits to get their rights adjudicated before the revenue court, the Additional Sessions Judge No. 1, Hanumangarh,following the decision of the Supreme Court in Mahant Ram Sumerpuri''s case (supra) and that of this court in Arvind Singh ''s case (supra) had set aside the order of the Sub-Divisional Magistrate, Hanumangarh dated November 29, 1985 and the proceedings u/s 145 Cr PC were dropped. There was no order of the revenue court appointing and receiver over these agricultural lands and there is nothing to show that the revenue court had issued any interim temporary injunction against either of the parties restraining him or her from interfering in possession of the other In such circumstances, the only legitimate order which could be passed by the Sub-Divisional Magistrate, Hanumangarh was to restore the agricultural lands which were attached by him and over which the Tehsildar, Tibi was appointed receiver, to the person from whom the receiver had taken possession or in whose possession the land was at the time receiver took over the possession. In his order dated December 10, 1986, the Sub-Divisional Magistrate had not stated that possession of the fields in question was taken over by the receiver from Mst. Dhankaur or from non-petitioner No. 2. All that he ordered to the receiver that he should hand over possession of these fields to the party from whose possession he had taken over the lands in his receivership, the Tehsildar, Tibi himself was not sure as to from which party the possession was taken. He acted simply on the report of the Inspector, land Record Circle Shereka who had reported on December 19, 1986 that no session of the fields had been taken when standing crops were growing thereon. He also mentioned that Mst. Dhankaur had got cultivated the fields through Mohar Singh s/o Nand Singh on share-crop basis and, therefore he concluded in his letter dated December 19, 1986 addressed to the receiver that the possession, when these fields were taken over by the receiver, was that of Mst. Dhankaur. The concerned Patwari accordingly under the orders of the receiver delivered possession of these fields to Mst. Dhankaur. The Sub-Divisional Magistrate had not issued any notice to non-petitioner No. 2 before directing return of possession. The receiver also did not give any notice to the non-petitioner No. 2. As soon as possession was delivered by the Patwari Shereka of the fields to Mst. Dhankaur, non-petitioner No. 2 made application on December 23, 1986 to the Sub-Divisional Magistrate that the fields were in his possession when the receiver had taken over the possession. The Sub-Divisional Magistrate gave notice of the application filed by Sher Singh non petitioner No. 2 to the petitioner. He also gave opportunity to the parties to produce evidence and also heard them. The Sub-Divisional Magistrate noticed that when the receiver took over possession of these fields on July 27, 1985 through Girdawar of the circle, the memo of taking over possession prepared at that time did not contain any recital as to in whose possession these fields were at the time of taking over possession by the receiver. Only both the parties were bound down not to interfere in the land till further orders. The Sub-Divisional Magistrate also noticed that the Patwari had reported on December 26, 1986 that it was not mentioned in the memo as to from which party possession of the land was taken over by the receiver. In the background of these facts, the report of the Inspector, Land Records dated December 19, 1986 loses all significance and can only be said to be report procured by Mst. Dhankaur. The Sub-Divisional Magistrate examined the entries of Khatoni from 5 Ys. 2033 to 2042 and also of Khasra Girdawari entries from 5 Ys. 2021 to 2025, 2026 to 2029 and 5 Ys. 2040 to 2041 and in all of them, the name of the non-petitioner No. 2 was entered. Even the demand of irrigation dues issued by the Irrigation Department for Rabi 1984-85 was in the name of the non-petitioner No. 2. On the basis of these documentary evidence, the Sub-Divisional Magistrate came to the conclusion that the fields were in possession of non-petitioner No. 2 when the receiver took over the possession. He therefore, directed the receiver to hand over back the possession of the fields to non-petitioner No. 2. From the side of the petitioner, no entry from the revenue record was produced to support her possession. Mst. Dhankaur filed criminal revision No. 43 of 1987 and the Additional Sessions Judge No. 1, Hanumangarh concurred with the findings given by the Sub-Divisional Magistrate, Hanumangarh.

Clearly when, under the orders of the Sub-Divisional Magistrate, Hanumangarh, the Tehsildar, Tibi (Receiver) had taken over possession of the subject matter of dispute, i.e. the. above mentioned fields, they were in custody legis. In view of the reasons and circumstances due- to which the proceedings were dropped, the only legitimate order that could be passed by the Sub-Divisional Magistrate, was to restore the fields to the party under whose possession they were at the time the receiver took over the possession. As already stated, no receiver had been appointed over these fields by the revenue courts and there was also no interim order restraining any party from interfering in the possession of the fields of any party. The Sub-Divisional Magistrate did not issue any notice to non petitioner No. 2 before passing his order dated December 10, 1986 and so also the receiver did not give any notice to non-petitioner No. 2 and simply after obtaining a report from the Inspector, Land Records, circle, Shereka, the receiver delivered possession of the fields to the petitioner. It has already been observed that the report of the Inspector. Land Records, circle Shereka dated December 19, 1986 is without any basis and it can only be termed to be a procured report. When non-petitioner. No. 2 came to know of it, he made application to the Sub-Divisional Magistrate and produced ample documentary evidence to show and establish that these fields were in his possession when the receiver had taken over the possession. No body can be allowed to suffer on account of mistake of the Court. Returning of possession by the receiver to the person from whose possession the lands were taken over by him in pursuance of the order of the Sub-Divisional Magistrate, Hanumangarh was primarily ministerial and administrative act and not a judicial determination of rights. It was brought to the notice of the sub-Divisional Magistrate by the non-petitioner No. 2 that as a matter of fact, the fields were taken over in possession by the receiver from his possession and when the Sub-Divisional Magistrate was satisfied from the evidence produced that the version of the non-petitioner No. 2 was correct, he was quite justified in rectifying the wrong done to non-petitioner No. 2 by the Subordinate revenue agencies. Principle of natural justice required that when ever an order of the type in question was contemplated, the parties should have been notified so as to afford them reasonable opportunity to put forward their respective cases before the Magistrate. The Sub-Divisional Magistrate had not taken recourse to this principle of law and he bad initially left the matter for determination by the receiver himself. The receiver did not give any notice to non-petitioner No. 2 and simply on the basis of the report of the Inspector, Land Records, which was without any basis, delivered possession of the fields to the petitioner.

I am of the opinion that the order of the Sub-Divisional Magistrate dated March 31, 1987 directing delivery of possession of the agricultural fields in question to non-petitioner No. 2 is quite correct and the Addl. Sessions Judge No. 1, Hanumangarh was quite justified in affirming that order. No abuse of the process of the court is involved and interest of justice has only been Sub-served by the impugned orders. The petition filed by Mst. Dhankaur u/s 482 Cr. P.C. has, therefore, no merit in it and it is hereby dismissed.