Gujarat High Court
Nagabhai Merabhai Bharvad - Thro' Poa vs State Of Gujarat & on 31 January, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
NAGABHAI MERABHAI BHARVAD - THRO' POA, RAMABHAI GOKALBHAI....Applicant(s)V/SSTATE OF GUJARAT R/CR.RA/654/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 654 of 2012 ================================================================ NAGABHAI MERABHAI BHARVAD - THRO' POA, RAMABHAI GOKALBHAI....Applicant(s) Versus STATE OF GUJARAT & 4....Respondent(s) ================================================================ Appearance: MR TEJAS P SATTA, ADVOCATE for the Applicant(s) No. 1 DECESED LITIGANT, ADVOCATE for the Respondent(s) No. 5 MR JINESH H KAPADIA, ADVOCATE for the Respondent(s) No. 3 MR LR PUJARI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 RULE SERVED BY DS for the Respondent(s) No. 2 , 4 , 5.1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 31/01/2013 ORAL ORDER
Applicant herein is aggrieved by the order dated 01.12.2013 passed by the Executive Magistrate, Tarapur in exercise of his power under Section 145 of the Code of Criminal Procedure, 1973.
2. It appears that proceedings under Section 145 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) were initiated upon the reports of the competent authority that the land dispute between the parties is likely to result into breach of peace. The Executive Magistrate recorded Panchnama dated 26.11.2012 and the impugned order thereafter came to be passed.
The impugned order in its operative portion inter alia provides that the lands bearing Survey Nos. 319, 320, 321 and 322 situated at village Tarapur, Taluka Tarapur shall be treated to be in the possession of respondent No.3 until any interim order or final order of the competent Civil Court in that regard is passed.
2.2 By the said order, the authority has thus believed the possession of the land in question to be of respondent No.3. As far as the land bearing Survey No. 315 is concerned, that parties are restrained from entering same until any interim or final order or decree of the competent Civil Court is passed. It is also clarified in the order that the order when holds respondent No.3 to be in possession, it is only for the purpose of maintaining peace, the breach of which was apprehended pursuant to the reports of the police and further competent authorities and that the same is not determinative of the ownership right.
3. In the background there is dispute about the ownership and possession of the land between the parties. The applicant herein has instituted Civil Suit No.83 of 2012 before the Court of Principal Civil Judge, Khambhat on 31.07.2012 for permanent injunction. It is contended therein that the applicant became owner of the land by way of registered sale-deeds dated 26.10.2010 and 03.05.2011. It is further pleaded and claimed that pursuant to the sale-deeds executed, the applicant has been in possession of the land. Respondent No.5 herein was the person who sold the land of the applicant. It is the case of respondent No.3 that same respondent No.5 had sold the very land to him also under the registered sale-deed dated 15.12.2006. Incidentally, Civil Suit No.81 of 2012 is instituted by the heirs of respondent No.5 the vendor in both the cases against present respondent No.3 with a prayer to set aside the sale-deed dated 15.10.2006 pleading and contending that the sale-deed is fraudulent. In the Civil Suit being Civil Suit No.81 of 2012, the Panchnama was recorded on 10.08.2012.
4. Learned advocate for the applicant Mr. Tejas Satta vehemently submitted that the applicant was in possession and that the sale deeds by virtue of which the land was purchased by him clearly recites about possession having been handed over to him at the time of execution of the sale-deeds. It was submitted that the Panchnama was drawn without hearing the applicant. According to him, the record of rights mentions the name of applicant and that the crop was sown and reaped by the applicant. He submitted that his rights in the pending Civil Suit will be seriously jeopardized because of the impugned order, and that the same was patently illegal.
4.1 Learned advocate for the applicant placed reliance on the decision in Ram Sumer Puri Mahant Vs. State of U.P. [(1985) 1 SCC 427] and decision of this Court in Bhanumatiben Suryakant Doshi Vs. Vanrajsinh Hirabhai Chavda [2001 (2) GLR 1216] to submit that when civil litigation is underway between the parties, initiation of parallel proceedings under Section 145 of the Code cannot be permitted. Learned advocate submitted that in view of the such position of law, the impugned order is required to be quashed.
4.2 Learned advocate Mr. Kapadia for respondent No.3 and learned Additional Public Prosecutor Mr.Pujari supported the order by mainly submitting that the proceedings under Section 145 of the Code and the order thereunder was in nature of executive function and such an order was passed to see that peace is not breached. As on the date of passing of the order the Executive Magistrate found that the possession of the lands in question was of respondent No.3 herein, the impugned order came to be passed.
4.3 Learned advocate for respondent No.3 relied upon the decision of the Apex Court in Jhummamal Alias Devandas Vs. State of Madhya Pradesh [AIR 1988 SC 1973] [1988 (4) SCC 452] and decision of this Court in Ashokkumar Chimanlal Modi Vs. Chimanlal Nanalal Shah and Anr. [1987 (1) GLH 330]. He submitted on the basis of those decisions that the it is clarified by the Supreme Court that the proposition laid down in case of Ram Sumer Puri Mahant (Supra) and Bhanumatiben (Supra) is not absolute and the proceedings under Section 145 of the Code are not barred merely because of Civil proceedings are going on, and said principle would not apply in all circumstances.
4.4 Sub-section (1) of Section 145 of the Code provides that if the executive magistrate is satisfied from a report of a police officer or upon other information that a dispute of land or water is likely to result into breach of the peace, he may pass an order in writing, stating the grounds of his being so satisfied, and require the parties to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
5. It has to be recorded at the outset that the proceedings under Section 145 of the Code and the order passed under Section 145 (1) of the Code is an executive order, and not adjudicatory. It as such dues not determine the rights of the parties in respect of the subject matter land etc. for which it operates. It is clear from the reading of sub-section (4) of Section 145 of the Code that the order passed by the executive magistrate is without reference to the merits or the claims of any of the parties to right to possess the subject of dispute.
5.1 Therefore, when the authority passes order under Section 145 of the Code, it is not an order determining any rights either with respect to possession or about ownership of the parties which may be agitated by the pasties before the Civil Court or any other adjudicatory forum. Order under Section 145 (1) of the Code is primarily to ensure that breach of peace does not occur. The import of the impugned order cannot travel beyond that. Furthermore, when it speaks of possession of respondent No.3, it is the possession referable to the date of order only.
5.2 In Jhummamal Alias Devandas (Supra), the Supreme Court explained the ratio in case of Ram Sumer Puri Mahant (Supra). From the following observations in Jhummamal Alias Devandas (Supra), it is amply clear that the order under Section 145 of the Code on the claim of possession is referable to the possession on the date of passing of the order only.
The ratio of the said decision is that a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under sec. 145 Cr.P.C. made by the Magistrate of competent jurisdiction be set at naught merely because the unsuccessful party has approached the civil court. An order made under sec. 145 Cr.P.C. deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court.
He may move the civil court with properly constituted suit. for may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.
(para
7) (the dark is emphasis supplied)
6. In
light of the above position of law, the interest of justice will be served if the following observations and clarifications are made;
The impugned order passed under Section 145 of the Code shall not prejudiced rights of either of the parties in the proceedings e.g. Civil Suit No.83 of 2012 and Civil Suit No. 81 of 2012, on any aspect including the possession.
It will be permissible for the applicant to claim, assert and establish his possession of the land in question in his Civil Suit notwithstanding what is shown in the present order.
The findings in the impugned order as regards possession and the Panchnama recorded shall not be treated as final determination of possessory rights of the parties and the Civil Court shall not be bound by the same.
All rights and contentions of both the sides in the respective Civil Suits instituted by them are kept open and shall not have any bearing from the order passed under Section 145 of the Code.
The order in question shall follow and abide by the outcome of pending Civil Suits and rights of the parties determined thereunder shall prevail.
6.1 Subject to the aforesaid observations and clarifications the present Revision Application is not entertained and it is accordingly disposed of.
7. Rule is discharged to the above extent.
(N.V.ANJARIA, J.) drashti Page 8 of 8