Swami Shaktivesh vs State of Haryana and ors.

A.P. Chowdhri, J.—Facts necessary for the disposal of this revision petition are that the petitioner claims to be a lessee for 99 years of certain land situate in Sarani Khawaja, District Faridabad. He is running an Ashram known as Gurukul Indraprastha, where 200 to 300 students were studying. Respondent No. 2 started intervening in petitioner''s possession and the petitioner accordingly instituted a civil suit which is pending in the Court of Additional Senior Subordinate Judge, Faridabad. Alongwith the suit, the petitioner made an application for temporary injunction. The learned Additional Senior Sub Judge granted an ex parte ad interim injunction, Annexure P 1, on the same day, i.e. 23.5.1986, directing the defendants not to interfere in the plaintiff''s possession except in due course of law. Learned counsel for the petitioner claims that the injunction continues to be in full force, uptil today. On an application made for the purpose, the learned Subordinate Judge appointed a Local Commissioner who visited the property, in question the same day at 6.00 p.m. and found the petitioner to be in possession thereof. Along with the petitioner were present about 20/25 followers and about 25 students under the age of 15. He submitted his report Annexure P2, dated 26.5.1986. On the same day i.e. on 23.5.86, Sh. Sat Dev Bharti, respondent No. 2, made a report to police on the basis of which the police made a report to the learned SubDivisional Magistrate, Ballabhgarh. The learned SubDivisional Magistrate initiated proceedings under section 145, Code of Criminal Procedure and issued notices to both the disputants, i.e. the petitioner and Shri Sat Dev Bharti to appear before him and to file their respective statement of claims with regard to the actual possession of the property in dispute. Both the said parties put in their claims and proceedings are still going on.

On 2.6.1986, the SubDivisional Magistrate, Ballabhgarh; attached property under section 146 of the Code of Criminal Procedure, as a result of which the petitioner was dispossessed from the property

On an application made by the Arya Pratinidhi Sabha, it was impleaded as respondent No. 3 in the said proceedings under section 145, Code of Criminal Procedure.

The petitioner moved an application dated 13.11.1986 before the learned SubDivisional Magistrate. Ballabhgarh for dropping the proceedings under section 145, Code of Criminal Procedure and also for revoking the order of attachment passed therein. Copy of the petition is Annexure. P3. The learned SubDivisional Magistrate passed the order dated 12.2.1987, Annexure P 4, declining the prayer of the petitioner. It is this order, Annexure P4, which has been impugned in this revision as illegal and void ab initio.

Respondent No. 2 Sh. Sat Dev Bharti failed to appear and to contest this revision petition.

Shri Anand Swaroop, Senior Advocate, appearing for respondent No. 3, raised a preliminary objection. He contended that the present revision is not maintainable in view of the provisions of section 397 (2) of the Code of Criminal Procedure. He has relied on Kartar Singh and others v. Smt. Pritam Kaur and another, 1984(1) Recent Criminal Reports 617 (1984)2 I.L.R. Punjab & Haryana 139, in which a Division Bench of this Court held that order of attachment under section 146(1) of the Code of Criminal Procedure was inherently temporary in nature and no revision there against was maintainable in view of the provisions of section 397 (2) of the Code of Criminal Procedure. After hearing learned counsel for the parties, I am of the view that the preliminary objection cannot prevail. What the petitioner prayed for in his application, Annexure P3, was that the proceedings under section 145 including the order attaching the property passed therein be dropped. In other words, the application was not confined only to releasing the property from attachment. The learned SubDivisional Magistrate considered both the prayers and rejected the application. The present revision is, therefore, directed against the order refusing to drop the proceedings under section 145, Code of Criminal Procedure, besides releasing the property from attachment. It cannot, therefore, be said that the order was confined to only releasing of the property from attachment,

Learned counsel for the petitioner put forward the several propositions and cited authorities in support of the same as under :

a) Where the civil Court is seized of the dispute regarding possession, parallel proceedings under section 145 of the Code of Criminal Procedure, cannot be permitted to go on;

b) In appropriate cases, where there is apprehension of breach of peace, effective action is possible under sections 107/151 of the Code of Criminal Procedure and

c) In the case of educational institutions, attachment of property and appointment of Receiver so as to disrupt the studies of the students should not be lightly resorted to unless there are compelling reasons.

It would suffice to refer to only some of the authorities referred to by the learned counsel.

In Ram Sumer Puri Mahant v. State of U.P. and Ors (1985)1, Supreme Court Cases 427 : 1985 (2) Recent Criminal Reports 43 a civil suit in which the question of possession was under dispute was decided by the trial court in favour of one party and appeal against, the judgment and decree was pending in the first Appellate Court when proceedings under section 145, Code of Criminal procedure, were initiated. It was held by their Lordships of the Supreme Court :

"The criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of Receiver for adequate protection of the property during pendency of dispute."

Their Lordships also expressed themselves against multiplicity of litigation, which was not in the interest of the parties and resulted in wastage of public time. In Nachhattar Singh and Ors. v. Gurinder Singh and Ors., 1983(1) Recent Criminal Reports 493 : 1983(2) C.L.R. 125, it was held that during the pendency of civil litigation in regard to possession of properly and during the period when the interim injunction of the civil court restraining the other party from interfering with the possession of one party is in force then proceedings under section 145, Code of Criminal Procedure could be launched only in aid of the order of the civil court. It was further held that to invoke the jurisdiction of the Executive Magistrate under section 145, Code of Criminal Procedure, at the instance of the party, which had been restrained from interfering with the possession of the other party would tantamount to clear abuse of the powers of the Executive Magistrate''s Court by such a party. Again, in Asa Singh and others v. State of Punjab, 1983(1) Recent Criminal Reports 492 : 1983 (2) C.L.R 197 , it was held that where the civil court directed the parties to maintain status. quo regarding possession and thereafter the SubDivisional Magistrate appointed a Receiver, the latter order, amounted to disturbing the order of status quo. It was, therefore, held that appointment of Receiver in such a situation was abuse of the process of the Court. It was pointed out that the preventive measures to prevent breach of peace and preserve public tranquillity would well have been taken by binding down the parties under section 107 of the Code of Criminal Procedure. The order appointing the Receiver was, therefore, set. aside. To the sarne effect is the law laid down in Mange Ram v. SubDivisional Magistrate and air. 1985(2) RCR(Crl.) 208 (P&H) : 1986(1) C.L R. 65 ; Pritam Singh v. The State of Punjab, 1986(2) C.L.R. 653 : 1987(1) Recent Criminal Reports. 195 ; Indubhai Patel & Ors v. State and Ors., 1987 (2) C.L.R. 266 (Delhi High Court); Gurdial Singh and Ors. v. State of Punjab, 1987(2) Recent Criminal Reports 702 : 1987 (2) C.L.R. 641 ; Mst. Manzoorarn v. The State of Punjab and others., 1987(1) RCR(Crl.) 405 (P&H) : 1988(1) C.L.R. 39 ; and Anant Bir Singh v. The State of Haryana and others, 1987(1) C.L.R 58.

Harbhajans Singh Dhatt and another v. the SubDivisional Magistrate. Dasuya and another, 1983(1) Recent Criminal Reports 431 : 1983 (1 C.L.R. 15, it was held that affairs of the college are nothing but the management thereof and what the SubDivisional Magistrate could not do under section 145 (1) of Code of Criminal Procedure, he could not be permitted to do in proceedings under section 146 (2) of the Code of Criminal Procedure.

Learned counsel appearing for respondent No. 3 did not attempt to dispute the aforesaid propositions. All he argued was that in the facts of the present case as noted in the impugned order, the dispute between the parties had already resulted in one murder and therefore it was necessary that the order of attachment be kept intact. Undoubtedly, the above contention is supported by the order under challenge, but an effective remedy is already available to the Executive Magistrate to take action under section 107, read with section 151, of the Code of Criminal Procedure.

For the reasons discussed above this revision petition is allowed and the impugned order dated 12.2.1987 (Annexure P4) of the SubDivisional Magistrate, Ballabhgarh is hereby set aside. Further proceedings under section 145, Code of Criminal Procedure, and appointment of Receiver by order dated 2.6.1986 are hereby quashed. The possession of the property in question will be restored in favour of the petitioner. There will be no order as to costs.