Delhi District Court
Naresh Kher vs (1) Sub-Divisional Magistrate on 21 November, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
Criminal Revision No.34/12
(Unique ID No.02406R0204622012)
Naresh Kher
S/o Late Sh. B.R. Kher
R/o C-2/2540, Vasant Kunj,
New Delhi.
ALSO AT:
Flat No.169, Munirka Vihar,
New Delhi. ......Revisionist
Versus
(1) Sub-Divisional Magistrate
(Vasant Vihar)
Old Terminal Tax Building
Kapashera, New Delhi.
(2) State
(3) Mahesh Verma
S/o Inderjeet Verma
R/o 2/10, Jangpura, New Delhi.
(4) Kanhaiya Lal Kewal Ramani
S/o Late Parmanand Kewal Ramani
R/o M-242, Vikas Puri,
New Delhi. ..............Respondents.
Date of Initial Institution :22.08.2012
Date of Institution in this court :21.09.2012
Date of Reserving Order :09.11.2012
Date of Pronouncement Order :21.11.2012
C.R. No.34/12 Naresh Kher vs. SDM & Ors. 1 /12
ORDER
1. This Criminal Revision has been filed under Section 397 Cr.PC against the Order dated 21.08.2012 passed by SDM, Vasant Vihar, whereby the property bearing Flat No. 169, Munirka Vihar, New Delhi, directed to be sealed in terms of the powers under Section 145 and 146 of Cr.PC.
2. The case of the revisionist is that the aforesaid property was owned and possessed by one Smt. Narmada Devi from whom the revisionist purchased the said property by an Agreement to Sell and the vacant and exclusive possession of the property was given to the revisionist on 04.07.2012. It has been stated that since 04.07.2012 the revisionist is in exclusive possession of the said property. It has been stated that by the impugned order dated 21.08.2012, Ld. SDM has directed attachment of the property under Section 145 & 146 Cr.P.C which he could not have C.R. No.34/12 Naresh Kher vs. SDM & Ors. 2 /12 done without first passing an order under Section 145 Cr.P.C regarding the reasons for apprehension of breach of peace. It has been stated that the SDM was under
statutory obligation to allow filing a written statement from the parties before passing any order. Further, it has been stated that the such order could have been passed by the SDM only in three circumstances i.e where the possession is not determinable or where none of the parties were in possession or in case of emergency. It has been stated that it was neither a case where the possession could not be determinable nor it was a case where none of the parties were in possession nor it was a case of emergency and hence the impugned order passed by the Ld. SDM is contrary to law. It has been stated that even in the FIR No. 203/2012, possession of the revisionist of the property in question by the revisionist has been mentioned and therefore when the revisionist was in possession of the property, there was no exigency requiring passing an order of C.R. No.34/12 Naresh Kher vs. SDM & Ors. 3 /12 attachment of the property in question. It has been stated that the right to hold the property can be determined only by a Civil Court and the SDM was under of duty to pass an order under Section 145 and 146 Cr.P.C only in the above mentioned three circumstances and when none of those three circumstances existed, the SDM has no jurisdiction to pass an order of attachment of property.
3. On the other hand, Ld. Counsel for the respondent No.3 Mahesh Verma has supported the impugned order by arguing that respondent No.3 Mahesh Verma had purchased the property in question from Smt. Narmada Devi by a registered sale deed dated 27.11.2009 for a sum of Rs.60 lacs. He further stated that by a Rent Agreement of the same date, the said property was rented back to Deepak Varshney, son of Narmada Devi. It has been stated that on 02.07.2012, Mahesh Verma took the possession of the C.R. No.34/12 Naresh Kher vs. SDM & Ors. 4 /12 property and put his lock over the property in question but on 08.07.2012 he came to know through his brother-in-law Saurabh that the lock put on the property had been removed and some stranger, namely, Naresh Kher (revisionist) was inside the property in question whereafter the present FIR was got registered at P.S. Vasant Vihar. Ld. Counsel has stated that he is in the process of filing the suit for possession. The criminal revision has also been challenged on the ground that it has been filed against an interlocutory order and in such a circumstance, the order passed by the Ld. SDM attaching the property in question is just and proper.
4. Ld. Addl. PP has appeared for State and has supported the impugned order stating that the order is a speaking one and since rival claims were made for the flat in question, the Ld. SDM had passed the appropriate order sealing the property. C.R. No.34/12 Naresh Kher vs. SDM & Ors. 5 /12
5. None appeared for respondent No.4 Kanhaiya Lal, although, he was duly served.
6. I have heard both the sides and have perused the records of the case including records of the SDM court.
7. So far as the objections regarding non- maintainability of the criminal revision is concerned, the same is without merits as an order passed under Section 145, 146 Cr.P.C is not an interlocutory order and hence the same is revisable as was held in Jesmeen Rehman vs. Afruza Begam, 2008 Criminal Law Journal 892.
8. The record shows that a Kalandra was filed in the court of SDM, Vasant Vihar on 03.08.2012 wherein it was stated that on 08.07.2012, an information was received in the PS regarding a claim of possession of Flat No. 169, Munirka Vihar, New Delhi. Thereafter, C.R. No.34/12 Naresh Kher vs. SDM & Ors. 6 /12 FIR No. 203/2012 under Section 448/420/120B IPC was registered. During the investigation, it came out that Smt. Narmada Devi is the original allottee of this flat from DDA which is being claimed by Mahesh Verma on the ground that he had purchased the said flat from Narmada Devi vide registered sale-deed dated 27.11.2009 and on the same date, he rented out the flat to Deepak Varshney S/o Narmada Devi and when he came back on the flat on 08.07.2012, he found that instead of tenant, some other person, namely, Naresh Kher was inside the flat, who claimed that he had purchased the flat in question vide Agreement to Sell dated 02.07.2012 and Naresh Kher had taken possession of the flat from Narmada Devi on 04.07.2012 and the sale-deed was to be executed on 05.07.2012 but thereafter Narmada Devi disappeared. Further, one more person Kanhaiya Lal also claimed that he had purchased the flat in question vide registered sale-deed dated 03.03.2010 from Narmada C.R. No.34/12 Naresh Kher vs. SDM & Ors. 7 /12 Devi and he too had rented out this flat to Narmada Devi . Yet another person Gurmeet Singh claimed that he also has Agreement to Sell in his favour of this flat which was executed by Narmada Devi.
9. On this Kalandra, notice was issued to Mahesh Verma, Kanhaiya Lal and Naresh Kher on 18.08.2012. On 18.08.2012, Advocates for Naresh Kher and Mahesh Verma appeared. Kanhaiya Lal was also represented. The SDM heard the arguments on that day and reserved the order which was fixed to be pronounced on 21.08.2012 at 2:00 p.m and on 21.08.2012 the impugned order was passed under Section 145 and 146 Cr.P.C and the property was directed to be sealed in apprehension of breach of peace.
10. Section 145 (1) of Cr.P.C prescribes the procedure where a dispute concerning land is likely to C.R. No.34/12 Naresh Kher vs. SDM & Ors. 8 /12 cause breach of peace. This Section also enjoins a duty on the Executive Magistrate to pass an order stating ground of his satisfaction of the apprehension of breach of peace and thereafter when such an order is passed, to require the parties to attend his court and to put in the written statement of their respective claims as respect to the actual possession of the subject in dispute.
11. Sub Section (4) of Section 145 Cr.P.C enjoins a duty on the Executive Magistrate to hear the parties and to receive evidences as may be produced by the parties and to take such further evidence as he may think necessary and then to decide whether any or which of the party was at the date of the order made by him under Sub Section (1) of Section 145 Cr.P.C, in possession of the subject in dispute. It is only after an order under Section 145 Cr.P.C has been passed by the Executive Magistrate if he thinks that the case is one of emergency or if he decides that none of the parties was C.R. No.34/12 Naresh Kher vs. SDM & Ors. 9 /12 in possession or if he is unable to satisfy himself as to which party was in possession, then and then only he may order attachment of the property. For reaching this conclusion, a judicial opinion is to be formed which can be done only after the respective parties have been given an opportunity to file their written statements and to lead evidences. Only after forming such an opinion, can the attachment order be passed by the Ld. Executive Magistrate. This attachment order is to remain in force till a competent court has determined the rights of the parties with regard to the person entitled to the possession.
12. If we revert back to the proceedings and the procedure adopted by the Ld. SDM, it is noted that the procedure prescribed under law has not been followed in passing the impugned order. There is no order passed by the Ld. SDM under Section 145 (1) Cr.P.C which shows the reasons for his satisfaction regarding C.R. No.34/12 Naresh Kher vs. SDM & Ors. 10 /12 likelihood of breach of peace. No opportunity to file written statement has been given nor any opportunity to lead the evidence has been given by the Executive Magistrate before passing the impugned order. As noted above, the parties were put to notice for 18.08.2012 and on that day after hearing the arguments, the orders were reserved for being pronounced on 21.08.2012 and on 21.08.2012 the impugned order was passed ordering sealing of the property. As a prelude to an order under Section 146 Cr.P.C, the SDM is obliged to pass an order under Section 145 (1) Cr.P.C and in the absence of an order under Section 145 (1) Cr.P.C, the entire proceedings become vitiated. There is no reasoning in the order as to whether the sealing of the property had been directed due to emergency or due to the reason that none of the parties was in possession or inability of the Executive Magistrate to decide regarding the de-facto possession of the property in question. An order of attachment can only be passed in C.R. No.34/12 Naresh Kher vs. SDM & Ors. 11 /12 either of these three conditions but incidentally none of these three conditions seems to have been tested by the Ld. SDM while passing the impugned order directing sealing of the property. The only reasoning given by the Ld. SDM, which probably has prompted him to pass the impugned order, is his apprehension of breach of peace, which does not satisfy the requirements of law directing attachment of property, as set out above. The SDM is a quasi judicial authority and is expected to act in accordance with law and should not adopt a short cut method subverting the rights of the parties conferred upon them by the statute. The impugned order thus cannot stand the scrutiny of law which is hereby set aside. The matter is remanded back in the circumstances to the Ld. SDM for proceedings further in accordance with law.
Announced in the open Court. (Rajeev Bansal) Dated:21.11.2012 ASJ-3/South District Saket Courts, New Delhi C.R. No.34/12 Naresh Kher vs. SDM & Ors. 12 /12