Jammu & Kashmir High Court - Srinagar Bench
Mohd Sultan Mir & Ors vs Smt. Ramshri And Ors (Respondents) ... on 4 March, 2009
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR 561-A No. 122 of 2007 Mohd Sultan Mir & Ors Petitioners Gh. Nabi Mir Respondents !Mr. M. Aijaz, Advocate ^Mr. S.H. Thakur, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 04/03/2009 :J U D G M E N T:
This petition u/s 561-A Cr.P.C has been filed to quash proceedings u/s 145 Cr.P.C pending on the files of Ld. Executive Magistrate 1st. Class Bandipora as also for quashment of order dated 18.06.05 passed by Ld. Executive Magistrate Bandipora and order dated 16th Oct.2007 passed by Ld. Additional District & Sessions Judge Baramulla in revision petition captioned Mohd Sultan Mir v. Gh. Nabi Mir.
Facts briefly stated:
The respondent Gh. Nabi Mir filed an application u/s 145 Cr.P.C before the court of Ld. Executive Magistrate 1st. Class (Tehsildar) Bandipra. The application was filed against the present petitioners. In the said application respondent pleaded that he has 4 kanals and 12 marlas of land in his ownership covered by survey No. 1611 situated at Bandipora. The application filed by respondent further reveals that adjoining the said land is land measuring 4 kanals and 02 marlas covered by survey No. 1610 min which is in the ownership of present petitioners. It is further pleaded in the application that present petitioners by employing muscle power have forcibly taken possession of 1 kanal 2 marlas of land out of the land of respondent and have annexed the same with survey No. 1610 min. The further case set up in the application is that under the supervision of Naib Tehsildar Bandipora the land was demarcated on spot and the demarcation proceedings resulted in showing that land measuring 1 kanals 2 marlas which are in the possession of present petitioners, in fact belongs to respondents. It is further pleaded by respondent that the present petitioners were requested number of times not to cause any impediment to the petitioners right to utilize 1 kanal 2 marlas of land but the present petitioners are not permitting the respondent to occupy land which has given rise to breach of peace on spot. This application has been drafted on 18th May 2005 and record reveals that same has been presented before Ld. Executive Magistrate 1st.
class Bandipora on 16th June 2005. Record of the revisional court further reveals that alongside the application u/s 145 Cr.P.C another application u/s 145(4) Cr.P.C was also filed on almost same grounds which were taken in the first application and request was made for attachment of the land in question as dispute over same has been raised which may give rise to likely breach of peace on spot. On the reverse of the said application is recorded report of some Revenue Officer. The said report reveals that as per record, land measuring 4 kanals 8 marlas under
survey No. 1610 min are in ownership of present petitioners and land measuring 4 kanals 12 marlas under survey No. 1611 min are recorded in the name of father of respondent. The report further reveals that in respect of both survey numbers dispute has arisen between the parties for about last two years. The report further reveals that the reporting authority alongwith the Girdawar of the area conducted demarcation of the land on 6th Nov. 2004 and as per demarcation it was found that there is deficiency of 1 kanal and 2 marlas of land of the respondent which land was found to be in possession of the present petitioners. The report further reveals that respondent had stated before the revenue authorities that present petitioners are not handing over the possession to the respondent of 1 kanal and 2 marlas of land. The revenue officer thereof while referring to stance of respondent has stated that because of this there is apprehension of breach of peace and had requested for initiation of action u/s 145 Cr.P.C and for attachment of the land. The record of the revisional court further reveals that on 18.06.05 an order was passed by ld. Executive Magistrate 1st. Class Bandipora. English translation of the same is as under:-
On 16.06.05 an application has been presented by the applicant. SHO Bandipora be informed to give his report about the application. Concerned patwaris report has been obtained which has been made part of the file.
The perusal of the application reveals that land measuring 4 kanals 12 marlas under survey No. 1611 min is recorded in the name of applicant, out of the said land only 3 kanals and 10 marlas are under the possession of the applicant. Adjoining to the land of the applicant is land of Mohd. Sultan Mir S/o M. Ramzan Mir covered by survey No. 1610. On spot M. Sultan Mir s/o Ramzan Mir and ors have taken forcible possession of land measuring 1 kanal 2 marlas and are refusing to restore back possession to the applicant, and they are fighting on spot which has given rise to breach of peace and any serious offence may be committed. Copy of extract of Girdawari shows that land measuring 4 kanals 12 marlas under survey No 1611 min is recorded in the ownership column in the name of father of the applicant and land measuring 4 kanals 8 marlas under survey No. 1610 is recorded in the ownership column in the name of non-applicants. The patwaris report reveals that non-applicants M. Sultan Mir and ors are in possession of land measuring 5 kanals 10 marals which makes it clear that non- applicants have forcibly taken possession of land measuring 1 kanals 2 marlas of the applicant which has given rise to dispute between parties on spot. The police report P/S Bandipora also reveals that in respect of land in question serious offence may be committed by parties and which may result in commission of cognizable offence. The applicants witnesses also reveal that on spot there is apprehension of commission of offence and apprehension of breach of peace.
The court is satisfied that the land in question can give rise to breach of peace as such land measuring 1 kanal 2 marlas under survey No. 1610 min situated at Village Bandipora is attached and SHO P/s Bandipora is ordered to proceed on spot and attach the land under survey No. 145 Cr.P.C and possession thereof be handed over to some other person. Superdar is directed to keep watch and ward of the land in question and the accounts be produced before the court. Further SHO P/S Bandipora is directed to submit report in respect of attachment within two days. Meanwhile, other party will file objections. Put up on 27.06.2005. Order announced. Petitioners challenged the proceedings by filing revision petition before Ld. Pr. District and Sessions Judge Baramulla who transferred the same on 25.11.05 to Ld. Additional District and Sessions Judge Baramulla for disposal under law.
The ld. Additional District and Sessions Judge dismissed the revision by its order dated 16.10.2007. It is in this factual backdrop the petition under section 561-A Cr.P.C has been filed seeking quashment of proceedings u/s 145 Cr.P.C along-with the orders passed thereon.
Heard ld. counsel for parties.
Section 145 Cr.P.C relates to the dispute concerning land etc which dispute is pregnant with the potential to likely to cause breach of peace. Section 145 Cr.P.C falls under Chapter XII of the Code of Criminal Procedure Svt. 1989, (hereinafter referred as Code of 1989).There are other chapters in the Code of 1989 which relate to taking of security for keeping the peace and for good behavior, security for keeping peace etc. Section 107 of the Code relates to security for keeping the peace in other cases and provides that whenever a District Magistrate, Sub-Divisional Magistrate or executive Magistrate of the first class is informed that any person is likely to commit a breach of peace or disturb the public tranquility or to do any wrongful act that may probably occasional a breach of peace, or disturb tranquility, the Magistrate after framing his opinion that there are sufficient ground for proceeding may issue a show cause notice as to why he should not be ordered to execute a bound, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate deems fit to fix. Other provisions under Chapter VIII relates to seeking security in different circumstances enumerated in various provisions thereof. Section 145 Cr.P.C is one such section in the Code which primarily relates to prevention of likelihood of breach of peace because of dispute concerning any land etc. The Magistrate competent in terms of the statute gets jurisdiction to initiate action if the parameters fixed by law are present and satisfied for initiation of action.
Section 145 of the Code has potential of affecting valuable right of a person relating to retain possession over the immovable property. A person in possession of the immovable property has right to possess and hold the same which right, however, is regulated by different kinds of laws and holding of the possession is dependent on the orders to be passed by competent authority in accordance with the law occupying the field. By exercising the powers in terms of section 145 of the Code the Ld. Magistrate gets powers to dispossess a person from the land. The said power as such is required to be exercised with great caution, circumspection and in appropriate cases and as a last resort to prevent likelihood to cause breach of peace. The power conferred by section 145 of the Code cannot be exercised at mere asking of the party or as veil to dispossess a person from the immovable property. The ld. Magistrate while considering motions for initiation of action u/s 145 of the Code is required to exercise a great deal of restraint in initiation of proceedings and it is only in compelling circumstances that the ld. Magistrate may initiate proceedings under said provision(s). The Ld. Magistrate in the fact situation of the given case when moved to initiate proceedings under section 145 of the Code has to strictly follow the said provisions and said provisions have to be construed strictly, as the consequences of initiation of actions under the such section is fraught with serious consequences, for a person who is in possession of the immovable property suffers dispossession.
Now looking to the facts of this case. It is admitted position that the respondent has been out of possession of land measuring 1 kanal 2 marlas under survey No. 1611 min situated at Bandipora at least prior to 6th Nov. 2004 on which date the demarcation was conducted by the revenue officers.
Section 145 (1) Sub section (3) and (4) are reproduced as under:-
145. Procedure where dispute concerning land or water is likely to cause breach of peace (1) Whenever an Executive Magistrate is satisfied from a report of a police officer 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 concerning 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.
(3)A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be punished by being affixed to some conspicuous place at or near the subject of dispute. (4)The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties, was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. A bare reading of the relevant parts of section 145 of the Code make it clear on the face of the record that the learned Magistrate gets jurisdiction to initiate action/proceedings if he is satisfied from police report or other information that the dispute likely to cause breach of peace exists concerning any land etc. then 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 the court in person or by pleader to put in written statements of their respective claims as respects the factum of actual possession of the subject of dispute. The ld. Magistrate is further required to serve copy of the order in the manner provided by the Code for service of a summons upon such person or persons as the Magistrate may direct, and at least one copy is required to be published by being affixed to some conspicuous place at or near the subject of the dispute.
In terms of sub section (4) of section 145 of the Code the Magistrate has to then inquire as to possession and decide the question whether any and which of the parties was at the date of the order in such possession. Proviso second of sub section (4) further provides that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.
A conjoint reading of these provisions lead to the legal conclusion that the proceedings having arisen in respect of dispute about possession of immovable property, which is likely to cause breach of peace have to terminate, after required enquiry as to which of the parties was in possession, and/or if any party was forcibly dispossessed within two months next before the date of such order. The Ld. Magistrate gets thus jurisdiction to initiate action u/s 145 of the Code if he is satisfied that the parties are claiming possession over immovable property which has given rise to dispute and which dispute is likely to cause breach of peace on spot, otherwise the ld. Magistrate does not get jurisdiction to initiate any action u/s 145 of the Code. The admitted position in the case in hand is that the respondent was not in possession of the land in question even before 6th Nov. 2004, which would mean that the case is not covered by second proviso of Section 145 (4) of the Code as no claim was made that the respondent was forcibly dispossessed within two months next before the date of passing of order u/s 145 (1) of the Code. Sub section (4) of Section 145 further provides that the ld. magistrate has to decide the question as to any and which of the parties was at the date of order in such possession of the subject matter. It is in such two eventualities that under sub section (6) of section 145 the Magistrate could pass order that party in possession to retain the same until legally evicted. In the present case on the admitted pleadings of the respondent, neither on the date of initiation of proceedings u/s 145 (1) of the Code nor within two months next before the date of passing of the said order he claimed to have been forcibly dispossessed. The Ld. Magistrate in the admitted fact position of this case had no jurisdiction to initiate proceedings u/s 145 (1) of the Code. This view gets support from the judgment of the Honble Supreme Court in case titled R. C. Patuck (petitioner) v. Fatima A. Kindasa and others (respondents) reported in (1997) 5 SCC 334:
Paras 5,8, 9 and 10 are reproduced as under:
5. It was at that juncture that the learned magistrate took up the Section145 proceedings launched by the petitioner and dismissed the same on 26.04.1996 on the ground that the petitioner even as per her own case was out of possession for more than two months before the passing of the preliminary order dated 16.03.1993 under sub-clause (1) of Section 145. Against the order of the learned Chief Metropolitan Magistrate dated 26.04.1996 the petitioner filed a writ petition bearing No. 540 of 1996 before the High Court of Bombay and the same was dismissed on 7.7.1996 holding that the petitioner was not in possession for more than two months before the date of passing of preliminary order under section 145 (1) on 16.3.1993. It is against this order of the High Court dated 9.7.1996 that this special leave petition has been filed.
8. So far as the first submission of learned counsel is concerned, it may be stated that as found by the learned chief Metropolitan Magistrate in his order dated 26.4.96 there was an earlier compliant lodged by the petitioner before the police authorities concerned at Bo bay wherein she admitted that the first respondent was in illegal occupation even from 17.3.92. In any even the subsequent complaint filed by the petitioner had made a complaint to the Bombay Municipal Corporation on 12.11.1992 in regard to the same, and therefore the dispossession, at any rate, was there by 12.11.1992. It is, therefore, clear that prima facie the alleged unauthorized occupation or construction of the wall was there at least from November 1992, if not earlier. If that be so, the said occupation is clearly for a period in excess of 2 months next before the date of the preliminary order dated 16.3.1993 passed under Section 145(1) of the Cr.P.C. In this connection it is necessary to refer to the provisions of sub-clauses (1) to (4) of Section 145 Cr.P.C.
145. Procedure where dispute concerning land or water is likely to cause breach of peace (1) Whenever an Executive Magistrate is satisfied from a report of a police officer 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 concerning 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.
(2) For the purposes of this section, the expression land or water includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be punished by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties, was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute.
9. It will be seen from the facts stated above that the order under Section 145(1) was passed by the learned Magistrate on 16.03.93. The question is whether the Magistrate could have passed any order in favour of the petitioner under sub-section (4) of Section 145. Going by the main sub-clause (4) of Section 145 it is clear that the Magistrate could initially decide who was in possession as on the date when the order under Section 145(1) was passed on 16.3.93. In case where the proviso to the said sub-clause (4) applied, that is, if it appeared to the Magistrate that any party had been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), the Magistrate might treat the part so dispossessed as if the said party had been in possession on the date of his order under sub-section (1). In other words, if the conditions mentioned in the proviso to sub-section (4) were satisfied, the Magistrate could deem a person to be in possession as on the date of the order under Section 145 (1) notwithstanding the fact that he was not in fact in possession on that date, but lost possession earlier, within two months next before the order. In this case unfortunately there is no material to show that any report of a police officer or other information was received by the magistrate within the period contemplated by the proviso. On the other hand, the petitioners admissions show that she lost possession much before the period mentioned in the said proviso.
10. We are therefore, of the view that both the learned Chief Metropolitan Magistrate and the High Court were right in coming to the conclusion that no order for restoration of possession could be passed in favour of the petitioner under Section 145 of the Cr.P.C. A contention was then raised that as the dispossession of the petitioner was continuing, and it amounted to a continuing wrong and, therefore, the proviso to sub-clause (4) must be deemed to be satisfied. We are afraid that such a contention based on continuance of dispossession cannot be accepted. Thus the proceedings on this admitted fact position is nothing but an abuse of the process of the court.
Section 561-A is reproduced as under:
Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of the any Court or otherwise to secure the ends of justice. The said section refers to the inherent power of the High Court and provides that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court, as has been stated in the said provision. The inherent powers inhere in this Court to prevent the abuse of the process of any court or to give effect to any order under Code, or otherwise, to secure ends of justice. The High Court in the given cases has to intervene ex debito justitiae. The proceedings pending before ld. Executive Magistrate 1st. Class Bandipora in view of the above discussions are nothing but an abuse of the process of the Court and require to be quashed. The ld. counsel for respondents Mr. S.H. Thakur, however, raised some pleas in support of his argument about the maintainability of this petition. The ld. counsel while arguing submitted that the ld. Magistrate gets jurisdiction to initiate action u/s 145(1) when he enters satisfaction that dispute likely to cause breach of peace exists concerning land etc. In this behalf, he has referred to case title Prakash Chand Sachdeva (appellant) v. State and ors(respondents). reported in AIR 1994 SC 1436. In para (3) of the said judgment it is provided as under:-
..There being no dispute of title between the appellant and respondent the only claim to be decided was if the appellant had been forcibly or wrongly dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two Courts below cannot be maintained. In the said case appellant was forcibly dispossessed within two months next before the date of order passed u/s 145 (1) of the Code. Admittedly in this case respondent has not been in possession of the land in question even before Nov. 9th 1994. This judgment does not support the case of respondent but in fact supports the petitioners. The ld. counsel has further submitted that in petition u/s 561-A Cr.P.C the proceedings/orders of ld. Executive Magistrate cannot be called in question. In this behalf the ld. counsel referred to case titled Sarjoo and ors applicants v. Babadin and anr. respondents reported in 1975 Cr. L.J 1562. The said judgment is based on section 483 of Cr. Procedure Code(central law) which is reproduced as under:- 483. Duty of High Court to exercise continuous superintendents over courts of Judicial Magistrates.
Every High Court shall so exercise it superintendence over the courts of judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate. Section 561-B of the State Code is reproduced as under:-
Duty of High Court to exercise continuous superintendents over courts of Judicial Magistrates. Every High Court shall so exercise it superintendence over the courts of judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate. The said section requires High Court to exercise continuous superintendence over the Courts of Judicial Magistrate(s) subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrate(s). Section 561-A and Section 561-B Cr.P.C are materially different and cover different situations.
Section 561-A refers to inherent powers of the High Court and exercise thereof is made contingent on the conditions mentioned therein. The two provisions are not over lapping but powers have to be exercised by the High Court in different situations. Section 561-B does not exclude jurisdiction of High Court to pass orders under inherent powers as are provided under section 561-A Cr.P.C.
Section 4 (f) defines the High Court to mean the highest Court of criminal appeal and revision in the J&K State.
Section (6) of the Code defines classes of Criminal Courts and Section 6-A defines classes of Magistrates which include executive Magistrates as well.
Section 7-B of the Code provides that Courts of session and Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the High Court and Courts of Judicial Executive Magistrates shall be Criminal Courts inferior to the Courts of session. For the purpose of exercise inherent powers by the High Court not only the sessions Court, Judicial Magistrates but even Executive Magistrate(s) are Courts inferior to High Court and the High Court has jurisdictional power under section 561-A Cr.P.C to pass appropriate orders for the purpose envisaged in the said section. The supervisory power is totally different from the inherent power. Section 561-B refers to supervisory jurisdiction of the High Court over courts of Judicial Magistrate(s) whereas section 561-A refers to inherent powers of the High Court. The judgment referred to by the ld. counsel for respondent in these circumstances does not support his contention and the facts as revealed by the judgment make it abundantly clear that High Court is not prevented from exercising its inherent powers. This judgment also does not help the respondent.
Ld. counsel for respondent, however, referred to case titled DharamPal and ors. (Appellants) vs. Smt. Ramshri and ors (respondents) reported in 1993 SC page 1361; to canvass the point that once revision petition is dismissed by sessions Judge second revision being barred by the Statute, inherent powers cannot be utilized for exercising powers which are expressly barred by the Code. The said judgment is based on section 397 (3) of Central Code which bars a second revision by same party. In that case in view of the statutory bar it was held that the High court erred in entertaining second revision. The said judgment is not applicable to the facts of the present case for the reason that there is no statutory bar contained in the State Code of Criminal procedure and second revision is permissible. This judgment is also not applicable. Ld. counsel also referred to some judgments as to what the dispute would constitute. He has also referred to some judgments to state that new pleas cannot be taken at appellate stage. The said judgment are not however, applicable to this case as no new pleas have been entertained and secondly the cases pertain to civil dispute.
The impugned order passed by ld. Executive Magistrate 1st. class also is rendered without jurisdiction for the reason that he has not recorded satisfaction as per the requirements of section 145 (1) of the Code and has attached the land in question when it was not pleaded in the application that the case is one of the emergent nature nor the ld. Magistrate has recorded any such satisfaction in the impugned order.
Ld. Sessions Judge while dismissing the revision petition of the petitioner has not adverted itself to the admitted facts on the record of the case. The ld. revisional court has failed to take notice of the admitted fact that the respondent being out of possession before Nov. 06th 2004, the proceedings u/s 145 Cr.P.C were not competent. The ld. revisional Court has assumed that the respondent was in possession of the land and dispute was raised about the same which gave rise to breach of peace on spot. The impugned order passed by the ld. Session Judge suffers from lack of application of mind and deserves to be set aside. This petition is accordingly allowed. Proceedings u/s 145 Cr.P.C initiated by ld. Executive Magistrate 1st. class Bandipora in case titled Gh. Nabi Mir v. Mohd Sultan Mir and ors. are quashed and consequently all the orders passed in such proceedings are quashed. The order of ld. Addl. Sessions Judge is also quashed. The ld. Executive Magistrate is directed to handover possession of the land in question to petitioner. The respondent, however, will not be prevented from initiating the appropriate proceedings for recovery of possession in case he has grievance about the same.
Disposed of.
(Muzaffar Hussain Attar) Judge Srinagar
04. 03.2009