Punjab-Haryana High Court
Balwant Singh vs State Of Haryana And Another on 10 February, 2011
CRM No. M 19222 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
CRM No. M 19222 of 2009 (O&M)
Date of decision: 10.02.2011
Balwant Singh ........ Petitioner
Versus
State of Haryana and another .......Respondent(s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. SS Bhinder, Advocate
for the petitioner
Mr. Amit Rana, DAG, Haryana
for the respondent - State
Mr. Atul Gaur, Advocate
for respondent No. 2
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Nirmaljit Kaur, J.
This is a petition under Section 482 Cr.P.C for quashing of judgment dated 11.07.2009 passed by Sessions Judge, Fatehabad and the order dated 13.02.2009 passed by the Sub Divisional Magistrate, Ratia, District Fatehabad, whereby, the land of the petitioner has been attached by initiating the proceedings under Section 145/146 Cr.P.C and a receiver has been appointed wrongly and illegally during the pendency of the civil suit with regard to the same land in the Court of Additional Civil Judge (SD) Ratia.
CRM No. M 19222 of 2009 2
Facts as stated in the present petition are that the petitioner is owner of land measuring 117 kanal 15 marlas, situated at village Nangal, Tehsil Ratia, District Fatehabad, Haryana and respondent No. 2 was working as helper with him and as litigation was going on between the parties, so in the year 2004, out of that land 9 acres of land was relinquished in favour of respondent No. 2 and the balance 45 kanal 2 marlas land comprised in khasra No. 107//2/2(6-16), 3(7-8), 8(7-8), 9(8-0), 10(8-0), 13 (7-10) was kept by the present petitioner. Respondent No. 2 Bhim Singh filed civil suit in the court of Additional Civil Judge (Sr. Divn.) with regard to the above said 6 acres of land comprising in khasra No. 107//2/2(6-16), 3 (7-8), 8(7-8), 9(8-0), 10(8-0), 13(7-10) claiming that he is in possession of the land on the basis of batai and that he may not be dispossessed forcibly and illegally from the land in dispute by the present petitioner. The Additional Civil Judge (SD) Ratia passed an order restraining the present petitioners from interfering in the peaceful possession of respondent No. 2 except in the due course of law. During the pendency of the civil suit in the Court of Additional Civil Judge (SD), Ratia, respondent No. 2 Bhim Singh moved an application before the SHO, Police Station Ratia that the petitioner intends to dispossess him from the land in dispute forcibly and illegally with the help of the anti social elements and he apprehends danger to his life. That on the basis of the application moved by respondent No. 2 Bhim Singh, the local police at Ratia prepared Kalandra under Section 145 Cr.P.C and presented the same to the ld. Sub Divisional Magistrate, Ratia for attaching the land in dispute. The learned Sub Divisional Magistrate Ratia, vide his order dated 13.02.2009 attached the land in dispute CRM No. M 19222 of 2009 3 exercising the powers under Section 146 Cr.P.C and appointed the Block Development and Panchayat Officer as Receiver. Aggrieved with the order dated 13.02.2009 passed by the learned Sub Divisional Magistrate, Ratia, the present petitioner filed revision petition before the ld. Sessions Judge, Fatehabad challenging the validity of the order dated 13.02.2009, but the ld. Session Judge, Fatehabad, dismissed the revision petition filed by the present petitioner concluding that it would be just and appropriate that the parties await the decision of the civil Court qua settlement of their respective rights.
Accordingly, the present petition has been filed under Section 482 Cr.P.C praying for quashing of judgment dated 11.07.2009 passed by Sessions Judge, Fatehabad and the order dated 13.02.2009 passed by the Sub Divisional Magistrate, Ratia, District Fahetabad.
The only ground raised by the learned counsel for the petitioner is that the aforesaid orders are wrong and illegal and cannot be sustained as it is well settled proposition of law that when the parties are litigating before the civil Court with regard to their rights over the land in dispute, proceedings under Section 145/146 Cr.P.C cannot be initiated.
Learned counsel for respondent No. 2 has vehemently opposed the same and has submitted that the case in hand was different. The Tehsildar had held the petitioner in possession of the land in dispute, whereas, the Additional Civil Judge had restrained the petitioner from interfering in the possession of respondent No. 2. In view of the contradictory orders, it was necessary to initiate the proceedings under Section 145/146 Cr.P.C.
CRM No. M 19222 of 2009 4
Learned counsel for the parties are heard.
It is an admitted position that the civil dispute is pending qua the same land. It is also admitted that respondent No.2 herein had filed a civil suit for permanent injunction against the present petitioner. The said suit was decreed vide order dated 08.02.2010 passed by the Addl. Civil Judge (SD) Ratia and the same has been placed on record as R2/6.
Learned counsel for respondent No. 2 does not dispute the contention of the learned counsel for the petitioner that meanwhile the order dated 08.02.2010 was challenged in an appeal before the Additional District Judge, in which, the Appellate Court is pleased to order 'status quo' with respect to the possession.
This Court is bound by the judgment rendered by this Court in the case of Des Raj and others v. State of Punjab and others reported as 2010 (4) RCR (Criminal) 577, wherein, in similar circumstances, the proceedings unde Sections 145 and 146 Cr.P.C were quashed, where the civil Court had already seized of the matter and status quo had been passed. Paras 9 and 10 of the aforesaid judgment are reproduced here-under:-
"9. This Court in the case of Karam Singh v. Sub Divisional Magistrate, Zira reported as 2001(2) RCR (Criminal) 617, quashed the proceedings under Section 145 and 146 Cr.P.C. where the civil Court was already seized of the dispute between the parties qua the possession etc. and the order of status quo had been passed and while relying on other similar judgments held, as under:-
"8. In Labh Singh and another v. Jaswinder Kaur and others, 1992(1) CLR 24, it has been held by this court that where the land in dispute was CRM No. M 19222 of 2009 5 jointly owned by the parties, the initiation of proceedings under Section 145 Cr.P.C., the order of attachment of the land under Section 146 Cr.P.C. was liable to be quashed. In the reported case, the order of status quo was also vacated by the civil Court on the ground that the parties being joint co-sharers in the land in dispute, the possession of one co-sharer shall be deemed to be that of all the co-sharers. In Babu Singh v. Moti Ram and others, 1992(1) CLR 48, the civil Court was already seized of the matter and had granted interim stay in favour of Babu Ram, plaintiff, restraining the other wise from interfering in the possession of the disputed land. Under those circumstances, it was held by this Court that proceedings under Section 145 Cr.P.C. were not maintainable. Accordingly, proceedings under Section 145 Cr.P.C. were quashed by this Court. In Balbir Singh and others V. state of Punjab and others, 1999(1) CLR 224, the dispute was between the partners of a partnership firm. It was under those circumstances that it was held by this Court that since all the partners were said to be in possession of the partnership property, it could not be possible be proceed under Section 145 Cr.P.C.. Resultantly, the proceedings under Section 145 Cr.P.C. and the order of attachment under Section 146 Cr.P.C. were quashed by this Court.
9. In the present case, as referred to above, the parties are co-sharers. The civil Court is already seized of the dispute between the parties, regarding the possession etc. the order of the status quo has already been passed. Taking all these facts into consideration, in my opinion, the initiation of CRM No. M 19222 of 2009 6 proceedings under Section 145 Cr.P.C. or the order of appointment of Receiver, under Section 146 Cr.P.C. would amount to abuse of the process of Court. Resultantly, the present petition is allowed. The proceedings under Section 145 Cr.P.C. and the order of appointing Receiver under Section 146 Cr.P.C. are hereby quashed."
10. No doubt, learned counsel for the respondents has also relied on a judgement rendered by our High Court in the case of Santokh (supra) holding a different view. However, the judgement rendered by Hon'ble the Supreme Court in the case of Ranbir Singh v. Dalbir Singh reported as 2002(2) Criminal Court Cases 187 was not brought to the notice of the learned Singal Bench of the High Court, wherein, it was held as under:-
"9. The civil court is already seized of the dispute between the parties, regarding the possessin etc. The order of the status quo has already been passed. Taking all these facts into consdieration, in my opinion, the initation of proceedigs under Section 145 Cr.P.C. or the order of appointment of Receiver, under Section 146 Cr.P.C. would amount to abuse of the process of Court. Resultantly, the present petition is allowed. The proceedings under Section 145 Cr.P.C. and the order of appointing Receiver under Section 146 Cr.P.C. are hereby quashed."
In this case too, it is not disputed that the matter is pending before civil Court and civil Court is already seized of the matter and 'status quo' has been ordered on 20.02.2010 by the Additional District Judge, Fatehabad in an appeal filed by the present petitioner. In fact, the application was moved by the respondent before the SHO during the CRM No. M 19222 of 2009 7 pendency of the civil suit.
Resultantly and in view of the above discussion, the present petition is allowed and the judgment dated 11.07.2009 passed by Sessions Judge, Fatehabad and the order dated 13.02.2009 passed by the Sub Divisional Magistrate, Ratia, District Fatehabad are hereby quashed being abuse of the process of Court.
(Nirmaljit Kaur) Judge 10.02.2011 mohan