Gauhati High Court
Ajam Hussain Laskar And 3 Ors vs Nam Uddin Laskar And Anr on 1 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 499
Page No.# 1/4
GAHC010164232010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 190/2010
1:AJAM HUSSAIN LASKAR and 3 ORS
S/O MUNIR UDDIN LASKAR,
2: SRI TAIMUS ALI MAZUMDER
S/O LT. MURESWAR ALI
3: SRI SAYARN NESSA
W/O TAIMUS ALI
4: MUST. NURABJUN BEGUM
D/O TAIMUS ALI
ALL AE THE R/O VILL- SUNDHORI PART-I
P.S. SONAI
DIST. CACHAR
ASSAM
VERSUS
1:NAM UDDIN LASKAR and ANR
S/O LT. MOHIBUR RAHMAN LASKAR.
2:SMTI AMBIYA BEGUM LASKAR
W/O SRI SURUJ ALI LASKAR
ALL ARE R/O VILL- SUNDHORI PART-I
P.O. and P.S. SONAI
DIST. CACHAR
ASSAM
Advocate for the Petitioner : MR.A A R KARIM
Advocate for the Respondent :
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BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 01-06-2020 None appeared for the revision petitioners on call.
2. This revision petition is pending for last 10 years.
3. Challenge in this revision petition is to the order dated 23/03/2010 passed by the learned Additional District Magistrate, Cachar, Silchar in Case No. 466M/2009, whereby the learned Magistrate attached the disputed land by an ex-parte order u/s 146 (1) of the CrPC.
4. The respondents herein filed an application before the Court of Addl. District Magistrate u/s 145 CrPC alleging dispute in respect of a plot of land and on the basis of the said application, learned Addl. District Magistrate drew up a proceeding u/s 145 (1) CrPC and attached the disputed land.
5. Aggrieved by the order of attachment, the revision petitioner preferred a revision before the learned Sessions Judge, which was registered as Crl. Revision No. 110/2019 and after hearing both the parties, learned Sessions Judge by the and order dated 26/02/2010 partly allowed the revision petition by setting aside the order of attachment. Learned Sessions Judge held in the aforesaid order that the materials on record did not reflect any emergency warranting attachment of the disputed land by an ex-parte order and therefore, maintaining the order of the learned Magistrate to the extent of drawing up the proceeding u/s 145 (1) of the CrPC, set aside the order to the extent of attachment of the land u/s 146 (1) of the CrPC. The operating part of the judgment in paragraph 13, was as follows :
"Considering all these above, I am of the clear opinion that the learned Magistrate while passing the impugned order in drawing up the proceeding u/s 145 (1) of the CrPC did nothing wrong and the impugned order drawing up the proceeding u/s 145 CrPC therefore, warrants no Page No.# 3/4 interference and it is affirmed accordingly. But, the order of attachment passed by the learned A.D.M., Silchar vide the impugned order attaching the disputed land under the provision of SEciton 146 (1) CrPC is found to be passed illegally and without jurisdiction and the same is therefore, held illegal and liable to be set aside and it is set aside accordingly."
6. After the said order passed by the learned Sessions Judge, the learned Magistrate by order dated 08/03/2010 again drew up a proceeding u/s 145 (1) CrPC, reason best known to him, required both the parties to file their written statement and fixed the next date on 09/04/2010 for filing written statement. However, in the mean time, the learned Magistrate on the basis of an application filed by the respondents passed the impugned ex-parte order on an off date (i.e. 23-03-2010). When the matter was already fixed for filing written statement by both the sides, learned Magistrate ought not to have passed the ex-parte order by attaching the land on an off-date, more particularly when the learned Sessions Judge has already held in the impugned order that there was no emergency for attaching the land.
7. Section 146 (1) CrPC provides that if the Magistrate at any time after making on order under Sub-Section (1) of Section 145 CrPC considers the case to be one of emergency, or if he decides that none of the parties was then in possession, as is referred to in Section 145 CrPC, or if he is unable to satisfy himself as to which of the party was then in possession of the subject of dispute, he may attach the subject of dispute, until a competent court determines the right of the parties thereto with regard to person entitled to the possession thereof.
8. Section 146 (1) CrPC empowers the Executive Magistrate to attach the disputed land after drawing up a proceeding u/s 146 (1) CrPC under any of the three conditions, viz., --
(a) some emergency (b) the Magistrate decides that none of the parties was then in possession of the land and (c) the Magistrate is unable to satisfy himself as to which both of them was then in possession of the subject of dispute. In the present case admittedly the proceeding was an old proceeding, inasmuch as, the proceeding u/s 145 (1) was drawn long back and the learned Sessions Judge already set aside the order of attachment passed by the learned Executive Magistrate with clear finding that there was no emergency warranting attachment of the Page No.# 4/4 disputed land. In view of the clear and unambiguous finding of the learned Sessions Judge, the attachment order, if any, could have been passed by the learned Magistrate only after hearing the parties on the basis of any of the two grounds i.e., (b) or (c) as indicated above, viz., inability of the Magistrate to decide as to who was in possession of the land or that none of the parties was in possession of the land. The impugned order clearly demonstrates that no such finding was recorded by the learned Magistrate and the learned Magistrate passed the impugned ex-parte order on an off date even after directing the parties to file their written statement, on mere asking by the petitioner without any police report or any further materials. Therefore, the impugned ex-parte order passed by the learned Magistrate on an off date was palpably illegal and without jurisdiction and therefore, cannot be allowed to hold the field. Accordingly, the impugned order dated 23.03.2010 attaching the disputed land is hereby set aside. The Magistrate shall proceed to hear the matter in accordance with law from the stage of filing written statement.
9. Send back the record along with a copy of this order.
JUDGE Comparing Assistant