Nawal Chand Mehta vs The State of Bihar and Another

S.B. Sinha, J.—With consent of the parties, this petition is being disposed of at the admission stage itself.

Heard Shri T.K. Das, learned Counsel appearing for the Petitioner and Mr. M.M. Banerjee, learned Counsel appearance on behalf of opposite party No. 2.

This application is directed against an order dated 15.3.1989 passed by Shri S.S. All, Executive Magistrate, Dhanbad, in M.P. Case no 652 of 1984, whereby and whereunder the (sic) Executive Magistrate, refused to (sic) of the servants quarters of a building to the premises in dispute to the Petitioner, inter alia, on the ground that a Title suit has been filed by the Opposite party No. 2 in the court of Munsif being Title suit No. 119 of 1988, which was pending decision.

The facts of the case lie in a very narrow compass By an order dated 25.1.1988 in a proceeding u/s 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) the learned Executive Magistrate, in exercise of its power conferred upon him under the proviso appended to Sub-section (4) of Section 145 of the Code held that the Petitioner has been dispossessed from the said servants quarters in question within two months next before the date on which the report of a police officer was received by the Executive Magistrate. By an order dated 28.1.1948, the said Executive Magistrate directed the officer-in Charge Saraidhella to put the Petitioner in possession in respect of the premises in question.

Opposite party No. 2, being aggrieved by and dissatisfied with the said order of the learned Executive Magistrate filed a revision application being Criminal Revision No. 31 of 1988 in the Court of the Sessions Judge, Dhanbad, which was dismissed by an order dated 30th July, 1988. By the said order the aforementioned order dated 25.1.1988 passed by the Executive Magistrate was affirmed.

Thereafter the Opposite party No. 2 filed the aforementioned Title suit No. 119 of 1988 for declaration of title and recovery of possession in respect of the property described in Schedule A appended to the plaint. In the said suit opposite party No. 2 filed an application for grant of injunction which was allowed, but upon an appeal filed by the Petitioner against the said order, the learned District Judge by an order dated passed in M.A. No. 95 of 1988, reversed the said order. Opposite party No. 2 filed a Civil Revision application in this Court being Civil Revision No. 14 of 1989 (R) against the aforesaid order of the District Judge, Dhanbad, which was also dismissed by an order dated 16.1.1989. Thereafter the Petitioner filed an application before the Executive Magistrate, who by reason of the impugned order refused to pass any order of delivery of possession, it is inter alia, on the ground that the Opp. party has filed the suit for declaration of title and confirmation of possession. It is now well settled that the pendency of a suit by itself after final order u/s 145 of the Code has been passed does not wipe oat the effect thereof. In this view of the matter, the order passed u/s 145 of the code in favoar of the Petitioner became final and binding on the parties.

In terms of Sub-section (6) of Section 145 of the Code, in case the learned Executive Magistrate heats a party to be in possession of the land in proceedings, in terms of the proviso to Sub-section (4) thereof, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbances of such possession until such eviction, and when he proceeds under the proviso to Sub-section (4), may restore possession to the party forcibly and wrongfully dispossessed.

Mr. M.M. Banerjee, learned Counsel appearing on behalf of Opposite party no 2, however, relies upon a decision of this Court in Balram Singh and Others Vs. Budho Devi and Others, and submits on the basis thereof that the proviso appended to Sub-section (4) of Section 145 of the Code is discretionary in nature. There is no dispute so far as this proposition of law is concerned. However, as indicated hereinbefore, the learned Executive Magistrate had exercised such discretion in favour of the Petitioner in his order dated 25.1.1988 and, in fact, by an order dated 28.1. 1988, he directed the Officer-in-charge, Seraidhella to put the Petitioner in possession of the land in proceedings. Thus, the said orders, as mentioned hereinbefore had become final and binding upon the parties as Criminal Revision filed by the opposite party against the said order dated 25.1.1988 was also dismissed. By reason of the impugned order, the learned Executive Magistrate has, thus, in substance purported to recall his own orders dated 25.1.1988 and 24.1.1988. Evidently the learned Executive Magistrate had no jurisdiction to do so. Once a final order u/s 145 of the Code has been passed, in my opinion, he is bound to give effect to the said order and could not have withheld the implementation thereof allegedly on the ground that a civil suit is pending.

This position in law is clear from a Division Bench decision of this Court in Kumud Behari Sarkar v. State of Bihar and Ors. 1988 P.L.J.R. 552. In this view of the matter, this application is allowed and the impugned order is set aside. The learned Executive Magistrate is hereby directed to put the Petitioner in possession of the property in question.