Nasib Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

The petitioners have filed this petition under Section 482 Cr.P.C. read with Article 226 of the Constitution of India for quashing the Kalendra and orders passed under Sections 145 and 146 Cr.P.C. on February 22, 1996, and May 13, 1996, Annexures P2 to P4.

Brief facts of the case are that respondent No. 3, Smt. Kako filed an application to S.H.O. Police Station, Morinda to the effect that she is owner to the extent of 1/3rd in the well, which is situated in Khatoni No. 142 Khasra No. 2//26 measuring 13 Marlas, but the respondents have forcibly filled the well with mud and threatened her. They have also destroyed the demarcation of this land and intend to take its possession forcibly. They also intend to cut down the fruit trees standing thereon. They have forcibly cultivated her field and intend to include in their own field which bears Khatoni No. 116 Khasra No. 2//21/1/1 measuring 1 K11 M. They have also constructed Khal on her land forcibly.

On this report Annexure P1 police filed Kalendra Annexure P2. Thereupon the parties were summoned by the Executive Magistrate. Both the parties submitted their claims. On February 26, 1996, the Executive Magistrate passed the order under Section 146 Cr.P.C. which was modified on May 13, 1996, as in the earlier order khasra numbers of the disputed land were not mentioned.

The petitioners are seeking quashment of this Kalendra as well as these orders passed by the Executive Magistrate. According to them, petitioner Nasib Singh has already filed civil suit bearing No. 377 dated 4.8.1995 against Kako for permanent injunction and declaration copy of the plaint is produced at Annexure P6. In this civil suit petitioner Nasib Singh has averred that he is owner in possession of land measuring 1 K7 M comprised in Khasra No. 21//1/2 and mutation entered on the basis of agreement bearing No. 489 dated 14.1.1993 is wrong and illegal. In Para 4 he has also pleaded that the defendant in league with the revenue authorities got entered in her name the mutation of Khasra No. 2//21/1/1 (1 K 13 M) which is wrong and illegal because out of this khasra number, as per the compromise she is entitled to get land measuring 11 Marlas only.

During the pendency of this civil suit petitioner Nasib Singh filed an application under JUDGMENT 39 Rules 1 and 2 CPC, which was also allowed by the trial Court vide order Annexure P7 dated 4.8.1995. Civil Court has already passed order of status quo. RespondentKako appeared in that civil suit and vide order dated 18.3.1996 (Annexure P8), this status quo order was continued with the consent of both the parties.

Respondent No. 3 is disputing all these facts. According to her, she is recorded owner of Khasra Nos. 2//21/1/1 and 2/26 measuring 1 K 11 Marlas as is evident from the Jamabandi Annexures R3/1 and R3/1A. When the petitioners tried to interfere in her possession and to forcibly dispossess her, she filed the application Annexure P1 before the concerned Police Station and on the basis of her report Kalendra Annexure P2 was submitted.

The petitioners'' learned counsel argued that since the Civil Court has already passed status quo order, the Executive Magistrate had no jurisdiction to pass an order either under Section 145 Cr.P.C. or under Section 145(1) Cr.P.C. He further pointed out that the order passed under Section 145(1) Cr.P.C. is illegal. This order is reproduced in the respondent''s reply at page 4. He also argued that the orders passed under Section 146(1) Cr.P.C. (Annexures P3 and P4) are also illegal and without jurisdiction. The Executive Magistrate has not at all mentioned that he is satisfied that there is some emergency and as he apprehends breach of peace, he is appointing a receiver to take charge of the disputed property. In the first order Annexure P3 the Executive Magistrate has not even mentioned the khasra numbers. In support of his contentions, he has relied on Jasbir Singh v. State of Haryana, 1997(1) RCR 573 and Dharampal v. Ramshri, 1993(1) RCR 696.

Learned counsel for respondent No. 3 submitted that this respondent is a poor widow. The petitioners in their highhandedness want to dispossess her from the disputed land. She is in its possession. Since she was threatened by the petitioners that they would dispossess her, she lodged report Annexure P1 and on her report Kalendra Annexure P2 was submitted and proceedings were initiated under Section 145(1) Cr.P.C. Many opportunities were given to the parties to submit their statement of claim with regard to the possession of the disputed land. They have already submitted their replies along with documents. After looking into these replies and documents and hearing the parties, the learned Executive Magistrate passed the order Annexure P3. But later on when he realised that in this order khasra numbers of the disputed land are not mentioned, he modified this order and passed order Annexure P4 wherein he has specifically mentioned the khasra numbers.

The respondent''s learned counsel submitted that as there was an apprehension of breach of peace, the learned Executive Magistrate has rightly passed the impugned orders Annexures P3 and P4. According to him, the Civil Court has not given a clear cut finding as to which party is in possession of the disputed land. Only status quo order is passed, which can be interpreted by either side in his or her own favour. Thus, according to him, the Executive Magistrate has rightly passed these orders and there is no ground to quash the proceedings. He has relied on Jamil Khan v. State of Haryana, 1995(1) RCR 595.

In this case, it is pertinent to mention that petitioner Nasib Singh filed civil suit on 4.8.1995 seeking declaration with a relief of permanent injunction with regard to the disputed khasra numbers. According to the petitioners'' learned counsel, as per the compromise arrived at between the parties, khasra No. 2//21 was divided into two parts. Its part 2//21/1/1 measuring 11 Marlas was given to Smt. Kako and the other part 2//21/1/2 measuring 1 K7 Marlas was given to petitioner Nasib Singh, but in connivance with the revenue authorities, while obtaining mutation, respondent No. 4 got her name mutated with Khasra No. 2//21/1/1 rightly but wrongly mentioning it measuring 1 K11 Marlas, as is evident from the documents Annexures R3/1 and R3/1A. He clarified that there is no dispute with regard to Khasra No. 2//25 measuring 13 Marlas, of which respondent Smt. Kako is the owner, but the real dispute between the parties is with regard to Khasra No. 2//21/1/1 with regard to its measurement only. While this civil suit was pending, status quo order was passed by the Civil Court vide Annexure P7. On being noticed, respondent Smt. Kako filed her written statement Annexure P5 and in her presence order Annexure P8 was passed, wherein it is specifically mentioned ''status quo to continue with consent''. This order is dated March 3, 1996.

In this connection, it is pertinent to note that Smt. Kako submitted her report Annexure P1 on 10.7.1995 before the S.H.O. Police Station, Morinda, whereupon Kalendra was filed before the Executive Magistrate on 4.8.1995. On that very day the Executive Magistrate passed the following order :

"Today Kalendra under Section 145 Cr.P.C. has been presented. Parties be summoned and for further proceedings, the case is adjourned to August 21, 1995."

Thereafter the case was adjourned on various dates. The parties submitted their claims and finally the learned Executive Magistrate passed the impugned orders Annexures P3 and P4 under Section 146 Cr.P.C. In order dated February 26, 1996 (Annexure P3) the Executive Magistrate has mentioned that parties have submitted their documents. Second party raised objection on the appointment of receiver. Thereafter the Executive Magistrate has ordered "After hearing the arguments of the counsel for the other party, decision for appointment of Naib Tehsildar, Morinda, as receiver in respect of the land in dispute was announced." Vide order Annexure P4 he amended this order on 13.5.1996. Relevant portion of this order is reproduced below :

".. According to the record the land in dispute comprised in Khasra No. 2//26 and 2//21/1/1 be read as correct for proper hearing of the case. As per orders under Section 146 Cr.P.C. passed afresh to the Naib Tehsildar, Morinda after modifying the earlier order of the Executive Magistrate. Report be put up on 23.5.1996 for action."

This aforesaid order is dated 13.5.1996, while status quo order passed by the Civil Court is dated 18.3.1996 (Annexure P8) which was ordered to continue with consent of both the parties. In view of the status quo order passed by the Civil Court, with the consent of the parties, the Executive Magistrate should not have appointed a receiver with regard to the disputed land.

Further, the orders passed under Sections 145(1) and 146(1) Cr.P.C. are infirm and illegal. Under Section 145 whenever there is any dispute over possession of any land and the Magistrate decides to pass an order under Section 145(1), the order should contain a statement that he was satisfied as to the existence of the dispute likely to cause breach of peace, grounds of his being so satisfied, correct description of the property as well as of the parties, should also be given and a direction should be given to the parties to attend the Court and to put in written statement of their claim in respect of the fact of actual possession of land. Once the parties submit their claims with regard to the possession of the disputed land along with their documents and after hearing them if the Executive Magistrate 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 land in dispute, he may attach the disputed land until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.

In this case the Civil Court had already passed an order of status quo. Thereafter there is no circumstance on record to show that any untoward incident happened to satisfy the Executive Magistrate that there was any emergency to appoint a receiver of the disputed property. The parties have already been directed by the Civil Court to maintain status quo with regard to the possession of the disputed property. The matter is pending in the Civil Court, which is competent to decide as to which party is in possession of the disputed land. Under these facts and circumstances, the Executive Magistrate fell into an error in passing orders Annexures P3 and P4 and appointing a receiver to take possession of the disputed land.

Respondent''s learned counsel has prayed that if the orders passed under Sections 145(1) and 146(1) Cr.P.C. are not in accordance with law, the case can be remanded to the Magistrate to pass a fresh order after hearing the parties. Even this argument is not tenable, because the matter is already pending before a Civil Court, which is competent to appoint a receiver also if the circumstances are so created. It is trite to mention that status quo order was passed with the consent of respondentKako. Hence, in my considered view, the Executive Magistrate has not appreciated the facts properly. The orders Annexures P3 and P4 are passed without application of judicial mind.

Accordingly, the petition is allowed. Not only orders Annexures P3 and P4 are hereby quashed, but even the proceedings under Section 145 Cr.P.C. are quashed.