Mukhtiar Singh vs State of Punjab and Another

S.S. Grewal, J.—This petition u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code) relates to quashment of order passed by Sub Divisional Magistrate, Patiala dated 10th of April, 1992 whereby order u/s 145(1) of the Code was passed directing the parties to file affidavits/documents, in support of their claim of possession regarding the land in dispute measuring 85 kanals 15 Marias as well as the order dated 16th of April, 1992 passed by the Sub Divisional Magistrate, Patiala, whereby order u/s 146(1) of the Code was passed the land in dispute was ordered to be attached and Tehsildar, Patiala was appointed as receiver in respect thereof.

Brief facts relevant for the disposal of this petition as per calendar submitted by the local police are that land measuring 85 Kanals 15 Marias was given on Chakota by the Gram Panchayat to Puran Singh etc. for the year 1986-87 and 1987-88. Mukhtiar Singh and Shyam Singh unautahorisedly took possession of the land in dispute. Due to this there was dispute concerning possession of said land which created apprehension of breach of peace between the parties. Because of dispute regarding possession of the said land notice u/s 145(1) of the Code was issued to the parties on 10-4-1992. On the next date of hearing i.e. on 16-4-1992 the Sub Divisional Magistrate, Patiala ordered attachment of the land in dispute and appointed Tehsildar, Patiala, as receiver of the land in dispute.

The learned counsel for the parties were heard.

On behalf of the petitioner, it was contended that no dispute likely to cause breach of peace existed between the parties with regard to the possession of the disputed land; that the security proceedings had also taken place between the parties and thus there is no need to continue separate proceedings u/s 145 of the Code against the petitioner and that the impugned order Annexure P/1 whereby preliminary order u/s 145(1) of the Code was passed calling upon the parties to file affidavits/ documents, in order to show their claim of possession regarding the land-in-dispute, is illegal, and, liable to be set aside.

The argument advanced on bahalf of the petitioner is without any merit. A perusal of the impugned order Annexure P/1 dated 10-4-1992 reveals that the Sub Divisional Magistrate has duly considered the police calandera and was satisfied on the basis of said report that there was a dispute between both the parties in respect of the land-in-dispute, and, because of the said dispute there was apprehension of breach of peace between the parties. The impugned order passed u/s 145(1) of the Code is legal and valid and the Sub Divisional Magistrate, Patiala, has rightly passed the same directing the parties to produce affidavits/documents in support of their claim of possession regarding the disputed land.

The learned counsel for the petitioner next assailed the legality and propriety of order dated 16-4-1992 Annexure P/2 passed by Sub Divisional Magistrate, Patiala. It was further submitted on the basis of the single Bench authority of this court in Joginder Singh Vs. State of Punjab and Another, that the trial Magistrate has not recorded any finding even remotely that it was a case of emergent nature.

A perusal of the impugned order Annexure P/2 clearly shows that the Sub Divisional Magistrate has applied his mind alter going through the police report and other information received by him. He was satisfied that the dispute was of emergent nature and was likely to spark off breach 6f peace and that the dispute regarding the posssession of the land-in-dispute exists between the parties and there was was likelihood of causing breach of peace. The aforesaid authority in Joginder Singh''s case (supra) does not in any manner advance the case of the petitioner. In that particular case the trial Magistrate had not applied his mind and had not recorded his finding that it was a case of emergency, or, none of the parties was then in possession as referred to in subsection (1) of Section 145 of the Code or that he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute. In the present case the trial Magistrate after due application of mind has specificallyi mentioned in his impugned order Annexure P/2 that it was a case of emergency and there was likelihood of breach of peace at any time. The trial Court accordingly ordered attachment of the land in dispute, whereas, Tehsildar was appointed as Receiver thereof. The trial Magistrate after due consideration of the material on the record has passed the order of attachment and appointment of Receiver u/s 146 of the Code and the said order cannot be said to have been passed in isolation, or, in violation of the relevant provisions of law, or, in utter disregard of the material on the record on the basis of which the trial Magistrate passed the impugned orders Annexures P/l and P/2. The authority in Joginder Singh''s case (supra) is clearly distinguishable and is not applicable to the facts and circumstances of the present case.

The argument advanced on behalf of the petitioner that proceedings before the Civil Court are pending, or, that proceedings u/s 7 of the Punjab Village Common Land (Regulation) Act, 1961 for eviction of the petitioner from the land-in-dispute are pending or, that Civil Writ Petition No. 4397 of 1990 is also pending before this court which mainly deals with the title of the land in dispute is not borne out from the record of this case. In fact no copy of pleadings, judgment or decree of any Court relating to the question of title or possession has been brought on the record of this petition. Nor from the material on the record it can be reasonably inferred that a Civil suit with regard to the subject matter of proceedings u/s 145 of the Code concerning the relevant period i.e. at the time of passing of preliminary order u/s 145(1) of the Code or two months prior thereto as contemplated u/s 145 of the Code is pending between the parties. Even otherwise pendency of the aforesaid proceedings per se would not create any legal bar for the continuation of proceedings under Sections 145 and 146 of the Code in view of the facts and circumstances of the present case. Apart from that the decision of the Criminal Court in proceedings u/s 145 of the Code shall be subject to the final decision of the civil court concerning adjudication of the rights of the parties.

For the foregoing reasons, there is no merit in this petition and the same is hereby dismissed. Both the parties through their counsel are directed to appear before the Sub Divisional Magistrate, Patiala, on 3-8-1992, who shall dispose of this case according to law expeditiously preferably within two months. Copy of the order be sent to the court of Sub Divisional Magistrate, Patiala for compliance and be also given dasti.

It is, however, clarified that nothing herein observed for the disposal of this petition shall in any manner be construed to affect the rights of the parties on merits.