Gujarat High Court
Minu Darabsha @ Dali Patel vs Police Sub Inspector & 3 on 23 March, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1506/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 1506 of 2012
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MINU DARABSHA @ DALI PATEL....Applicant(s)
Versus
POLICE SUB INSPECTOR & 3....Respondent(s)
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Appearance:
MR S.I. NANAVATI, Ld. SENIOR ADVOCATE WITH MR HARDIK A DAVE, ADVOCATE
for the Applicant(s) No. 1
MR NM KAPADIA, ADVOCATE for the Respondent(s) No. 2
MR NJ SHAH, APP for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 1 , 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/03/2015
ORAL ORDER
1. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"8 (a) This Hon'ble Court be pleased to admit this petition.
(b). This Hon'ble Court be pleased to issue a writ of and in the nature of certiorari or any other appropriate writ, order or direction, for setting aside the order dated 5th May 2012 passed by learned Additional Executive Magistrate, Surat in Case No.1 of 2012(Annexure A) exercising powers under Section 145 of the Code of Criminal Procedure.
(c) This Hon'ble Court be pleased to issue a writ of and in the nature of certiorari or any other appropriate writ, order or direction, for setting aside the Case No.1 of 2012 initiated by respondent No.1 herein before learned Additional Executive Magistrate, Surat with a prayer to exercise powers under Section 145 of the Code of Criminal Procedure.
(d) This Hon'ble court be pleased to stay, order at Annexure A till final Page 1 of 10 R/SCR.A/1506/2012 ORDER disposal of this petition and also be pleased to direct respondent No.1 to restore possession of the Land in question from respondent No.2, to the applicant which was forcibly taken under guise of order at Annexure A.
(e) This Hon'ble Court be pleased to grant adinterim relief in terms of prayer (d).
(f) To pass such other and further orders as are necessary in the interest of justice."
2. It appears from the materials on record that the dispute between the parties is with regard to a plot of land bearing Revenue Survey No.209, revised Revenue Survey No.111/3 of the Vesu Gam, Surat.
3. It appears that the parties are before three forums : (1) Civil Court (2) Tenancy proceedings before the Revenue Authorities (3) Section 145 proceedings before the Additional Executive Magistrate. Both the sides claim that they have a right, title and interest over the property. The petitioner herein claims interest over the property by virtue of an agreement to sell executed by the original owner way back in the year 1986. On the other hand, the respondents claim to be the owners of the land on the basis of a registered sale deed executed on 14th February 2002.
4. It appears from the materials on record that the petitioner herein filed a Special Civil Suit No.316 of 2002 pending as on today in the Court of 4th Additional Senior Civil Judge, Surat and has prayed for the specific performance of the agreement. It also appears that along with the said Special Civil Suit, an Application Exhibit 5 for interim inunction was also filed.
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5. On 6th May 2006, the application filed by the petitioner as plaintiff below Exhibit 5 came to be partly allowed by the 4th Additional Senior Civil Judge, Surat.
6. I may quote at this stage the relevant observations recorded by the Civil Court:
"On looking the revenue record and on looking the order of tenancy case No.47/2000 and tenancy appeal No.47/2001. It is appears that the plaintiff may be in possession of the suit land. Of course, the defendants have also claimed for possession as an owner. But on considering the above documents at this juncture, the plaintiffs may be in the possession of the suit land.
As against in argument in respect of application at Exh;5 and in respect of Exh:62 the defendants stated that Darab Shah was not tenant, but is not acceptable at this juncture, because tenant chapter is pending till today and issue regarding tenancy is not settled and in that regard. Of course, in revenue record, the name of the defendant No.1 is running as an occupier or owner but in some of documents, the name of the plaintiffs and the name of the father of the plaintiffs are also appears. Hence, it is admitted fact that the tenancy issue is involved between the parties. Hence, the plaintiffs claimed the possession on the tenancy and on the agreement to sell of 1986 and the defendants claimed the possession as a owner and occupier of the suit land. In that circumstances, at this juncture without going into merits for the protection or suit land and in the interest of parties and in the interest of the justice, I am of the opinion that the suit land should be protected by passing appropriate order. The plaintiff and defendants have filed many authorities in support of their argument but on considering the above discussion, I am of the opinion that the plaintiffs have prima facie case, but the balance of convenience is partly in favour of both parties and in that circumstance, an order for protection of the suit land is required to be granted, otherwise, the suit will be frustrated and they will suffer from irreparable loss. Hence, I am of the opinion that an ad interim injunction in TOTO, which is prayed by both parties is required to be not granted. But, only an order will be proper for the protection of the suit property. Hence, answers of the issues regarding law of injunction in respect of both applications are according. An application below Exh:62 is not required to be granted as defendant No.1 have no prima facie case. The defendant Nos. 1, 2 and 3 have executed a registered sale deed in favour of defendant Nos.4 and 5. Hence, at this juncture, the defendant Nos.1, 2 and 3 have no possession of the suit land and as against the defendant Nos.4 and 5 have possession of the suit land by virtue of registered sale deed. But, it is also appears from the recored that the tenancy chapter is Page 3 of 10 R/SCR.A/1506/2012 ORDER pending between the plaintiffs and original land lord, in that circumstances, even though, there is a registered sale deed in favour of defendant Nos.4 and 5, but the possession is disputed. Hence, in the protection of the suit land, the status quo is required to be granted. Hence, even though, I reject the application below Exh:62, but an order to maintain status quo by both parties is required to be granted. Hence, on considering above discussion, I pass the following order:
An applicant on below Exh:5 of the plaintiffs is partly allowed and an application below Exh:62 of the defendants is rejected. But both parties are hereby ordered to maintain status quo of the suit property till final disposal of the suit."
7. It appears that the order passed by the Civil Court below Exhbit 5 in the year 2006 remained in operation until the Civil Suit came to be dismissed for default on 4th July 2011. It also appears that thereafter, a Restoration Application was filed by the petitionerthe original plaintiff and the Civil Suit was ordered to be restored to its original file. It appears that there was a delay in filing the Restoration Application, which came to be condoned.
8. Being dissatisfied, the other side came up before this Court. This Court confirmed the order passed by the Civil Court condoning the delay in filing the application for restoration of the Civil Suit. So far as the order restoring the suit is concerned, it still remains the subject matter of challenge before this Court.
9. I am told that the petition in that regard is still pending. However, the fact remains that the original Civil Suit filed by the petitioner herein as on today is pending before the Civil Court.
10. It appears that in the meantime, the respondents herein moved an application before the Police that due to the dispute as regards the property, there was every likelihood of the breach of public peace and tranquility.
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11. It appears that the Police filed an appropriate report in that regard before the Additional Executive Magistrate. Based on such report of the Police the Additional Executive Magistrate thought fit to initiate proceedings under section 145 of the Code. On 5th of May 2012, the Additional Executive Magistrate, Surat City, passed a preliminary order directing that the possession of the disputed property shall be handed over to the respondents herein i.e. respondent No.2 and his wife.
12. It deserves to be stated at this stage that in the entire preliminary order passed by the Additional Executive Magistrate, there is no finding or satisfaction, worth the name, recorded by the authority that on the date of passing of the preliminary order, the respondent No.2 and his wife were in possession of the disputed property.
13. Such preliminary order came to be challenged before this Court by way of the present petition. On 14th of May 2012, a learned Single Judge of this Court passed the following order:
"1. The matter was mentioned in the morning for urgent circulation today. Permission was granted. Papers are received from the Registry.
2. Learned Senior Advocate Mr.Nanavati, appearing with Mr. Hardik Dave, for the petitioner invited attention of the Court to Sections 145 and 146 of the Code of Criminal Procedure. For ready perusal, the said Sections are quoted herein below:
"145 (1) Whenever an Executive Magistrate is satisfied from a report of a police or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
146 (1) If the Magistrate at any time after making the order under subsection (1) of section 145 considers the case to be one of Page 5 of 10 R/SCR.A/1506/2012 ORDER 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 subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:
Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute."
3. Learned Senior Advocate for the petitioner invited attention of the Court to the operative portion of the order passed by the learned Additional Executive Magistrate, Surat City in Case No.1 of 2012 on 5.5.2012. Learned Senior Advocate submitted that the order is contrary to the aforesaid provisions of the Code. Learned Senior Advocate submitted that assuming for the sake of argument that the learned Executive Magistrate was of the opinion that the matter requires consideration at his hands, he could have asked the parties concerned to attend his Court in person or by pleader on a specified date and time, and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute.
3.1 Learned Senior Advocate submitted that Section 146 of the Code is very clear which says that, in the event the Magistrate is of the opinion that while exercise suggested under subsection (1) of Section 145 is undertaken, if any breach of peace was apprehended, he could have opted for exercise of power vested in him under subsection (1) of Section 146 and by virtue of that power it was open for him to attach subject matter of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.
3.2 Taking into consideration the fact that primafacie, there is ample evidence to the petitioner being in possession, but that question is to be decided by the competent Court and therefore until such question is decided by the competent Court, the Magistrate could have opted only for exercising powers vested in him under subsection (1) of Section 146 of the Code, the matter requires consideration.
4. Rule returnable on 19.06.2012. Mr.Patel, learned Additional Public Prosecutor appearing for respondent No.4 waives service of notice of Rule. The order passed by the learned Additional Executive Magistrate, Surat dated 5.5.2012 in Case No.1 of 2012 is hereby stayed.
4.1 The Commissioner of Police, Surat City is directed to take
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R/SCR.A/1506/2012 ORDER
possession of the property in question, after drawing of the Panchnama of the actual position as on today so that there may not be any further dispute between the parties that after the order dated 5.5.2012 and after passing of order by this Court, any of the parties have further indulged into any activity for establishing their possession.
4.2 At the request of learned Advocate appearing for the petitioner it is made clear that it will be open for the petitioner to contend that pursuant to order dated 5.5.2012 the other side has entered into the property in question on 9.5.2012 and has carried out certain work, which was not otherwise permissible in law.
5. Direct service is permitted.
6. A copy of his order be made available to learned Additional Public Prosecutor for its onward communication."
14. Mr. Nanavati, the learned senior advocate appearing for the applicant vehemently submitted that the Additional Executive Magistrate, Surat, committed a serious error in passing the impugned order. He submitted that the proceedings before the Additional Executive Magistrate are completely misconceived having regard to the nature of the dispute. He submitted that although on the date when the impugned order came to be passed, the Civil Suit was not in existence because it was ordered to be dismissed for default, yet, at a later stage, the same was ordered to be restored. Of course, such restoration is a subject matter of challenge, which is still pending before this Court. He submits that since both the parties are before the Civil Court, the Civil Court should be asked to decide the right, title and interest of the parties over the disputed property.
15. Mr.Nanavati, the learned senior advocate submitts that he would be moving an application for expeditious disposal of the petition pending as on today challenging the order passed by the Civil Court restoring the Civil Suit. Well, it is for the parties concerned to take appropriate steps in that regard and I express no opinion.
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16. On the other hand, this application has been vehemently opposed by Mr.Kapadia, the learned advocate appearing for the respondent No.2. He submits that the Additional Executive Magistrate, Surat, committed no error, not to speak any error of law, in passing the impugned order. He submits that it may be true that the dispute as on today is pending before the Civil Court, yet Section 145 proceedings are independent of the same because they are initiated for a different purpose i.e. on the apprehension expressed by the authority that the dispute between the parties may lead to a breach of public peace and tranquility. He submits that there being no merit in the application, the same be rejected.
17. Mr. N.J. Shah, the learned APP appearing for the State, has supported the impugned order. He submitted that no error, not to speak any error of law, could be said to have been committed by the Additional Executive Magistrate.
18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the Additional Executive Magistrate committed any error in passing the impugned order.
19. The challenge before me is to a preliminary order passed by the Additional Executive Magistrate in the proceedings under Section 145 of the Code. Before any final order could be passed, the proceedings came to be stayed by this Court vide ordered dated 14th May 2012. I was inclined to pass an order of the nature by which the position prevailing as on today would have continued and the Civil Court could have been directed to expeditiously dispose of the Suit determining the rights of the respective parties, however, a hurdle is coming in my way because the very order passed by the Civil Court restoring the Civil Suit is a subject matter of challenge before this Court and which is pending as on today.
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20. Mr.Kapadia, the learned advocate appearing for the respondent No.2 made it very clear that he would like to pursue the petition. In such circumstances, my order directing the Civil Court to hear the Civil Suit at the earliest would not serve the purpose and would directly come in conflict with the petition, which is pending as on today before this Court. Mr.Kapadia submits that the Additional Executive Magistrate has rightly believed his client to be in possession on the date of passing of the preliminary order and, therefore, there is no error committed by him.
21. I am left with no alternative but to direct the Additional Executive Magistrate to proceed further with the proceedings which are pending with him as on today and pass a final order in accordance with law, subject to the final order that the Civil Court may ultimately pass on disposal of the suit. However, having regard to the peculiar facts and circumstances of the case and the nature of dispute between the parties, I would like to continue the arrangement made by this Court while passing the order dated 14th May 2012. Vide order dated 14th May 2012, noted above, the Commissioner of Police, Surat City, was directed to take over the possession of the property after drawing Panchnama of the actual possession prevailing on that day with a view to obviate any further dispute between the parties. Therefore, the possession shall remain with the Commissioner of Police, Surat, till the final conclusion of the proceedings before the Additional Executive Magistrate under Section 145 of the Code. Since the Additional Executive Magistrate would now be proceeding further to dispose of the entire proceedings, it shall be open for both the parties to adduce necessary evidence as regards their respective claims. It will be open for the petitioner herein to point out to the Additional Executive Magistrate that the proceedings under Section 145 of the Code are not warranted, as he has already filed a Civil Suit, which is pending as on today before the Civil Court.
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22. The proceedings of Case No.1 of 2012 pending before the Additional Executive Magistrate, Surat, shall be disposed of finally on or before 31st of May 2015. I clarify that I have not gone otherwise into the merits of the matter. It is for the authority concerned to now proceed further in accordance with law, since the challenge in this petition is to a preliminary order.
With the above, this petition is disposed of .
(J.B.PARDIWALA, J.) ali Page 10 of 10