Gujarat High Court
Surendra Ishwarlal Tamkhidas vs Minu Darabsha @ Dali Patel & 5 on 8 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/7677/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7677 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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SURENDRA ISHWARLAL TAMKHIDAS....Applicant(s)
Versus
MINU DARABSHA @ DALI PATEL & 5....Respondent(s)
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE ASSISTED BY MR NM KAPADIA,
ADVOCATE for the Applicant(s) No. 1
MR YATIN N OZA, SENIOR ADVOCATE ASSISTED BY MR AMIT V
THAKKAR, ADVOCATE for the Respondent(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 4 , 6
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3 , 5 - 6
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/09/2017
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R/SCR.A/7677/2016 CAV JUDGMENT
CAV JUDGMENT
1 By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs:
"13A. Your Lordships be pleased to issue a writ of mandamus or writ of certiorari quashing and setting aside the order dated 28.03.2016 passed by the District and Sessions Court, Surat in Criminal Misc. Application No.3360 of 2016 as did not pass any consequential orders regarding return of possession to the present petitioner and also to restore the possession of the land to the petitioner consistent with the discussion and findings arrived at by the Sessions Court and the order of the District and Sessions Court, Surat in Criminal Revision Application No.83 of 2015, passed on 23.09.2015 so far as it did not enter into the merits of the matter so far as it did not quash and set aside the finding regarding possession by the ld. Executive Magistrate and also the order dated 26.10.2015 passed by the ld. Executive Magistrate.
B. That pending hearing and final disposal of this petition, Your Lordships be pleased to stay the implementation and execution of the order dated 26.10.2015 by the Executive Magistrate and be further pleased to direct the private respondents to hand over the possession the land to the Commissioner of Police Surat City.
C. Cost of this petition be granted.
D. Any other appropriate relief deemed just, fit and proper may
pleased be granted."
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, situated at the Vesu Gam, District: Surat.
3 It also appears that the parties, as on date, are before two forums:
(1) Civil Court and (2) Tenancy proceedings before the revenue authorities. Both the sides claim to have a right, title and interest over Page 2 of 23 HC-NIC Page 2 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT the land in question. The applicant herein is asserting his right over the property by virtue of a registered sale deed executed in his favour by the original owner dated 14th February 2002. Whereas the private respondents herein are asserting their rights on the basis of an agreement to sale purported to have been executed by the original owner way back in the year 1986.
4 The material on record further reveals that the respondent No.1 herein filed a Special Civil Suit No.316 of 2002 in the Court of the 4 th Additional Senior Civil Judge, Surat, and prayed for the specific performance of the agreement to sale. In the said Special Civil Suit, an application Exhibit : 5 for interim injunction was also filed.
5 On 6th May 2006, the application Exhibit : 5 filed by the respondent No.1, as the plaintiff, came to be partly allowed by the 4 th Additional Senior Civil Judge, Surat.
6 The Civil Court, while partly allowing the Exhibit : 5 application, observed as under:
"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 Page 3 of 23 HC-NIC Page 3 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 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 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 The record further reveals that the order passed by the Civil Court below Exhibit : 5 referred to above remained in operation till the civil suit came to be dismissed for default on 4th July 2011. The respondent No.1, thereafter, filed a restoration application 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 by the Court concerned.
Page 4 of 23HC-NIC Page 4 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 8 Being dissatisfied, the applicant herein came before this Court. This Court affirmed the order passed by the Civil Court condoning the delay in filing the application for restoration of the civil suit. So far as the main order restoring the civil suit is concerned, it still remains the subjectmatter of challenge before this Court. The petition filed by the applicant herein in that regard is pending in this Court as on date. However, the fact remains that the original civil suit filed by the respondent No.1 herein is pending as on date before the Civil Court.
9 As both the sides started asserting their rights over the property, the applicant herein preferred an application addressed to the Commissioner of Police that there was every likelihood of the breach of public peace and tranquility. The police filed an appropriate report in that regard before the Additional Executive Magistrate. Considering the report of the police, the Additional Executive Magistrate thought fit to initiate proceedings under Section 145 of the Code of Criminal Procedure, 1973. On 5th May 2012, the Additional Executive Magistrate, Surat City passed a preliminary order directing that the possession of the disputed property be handed over to the applicant herein and his wife.
10 The preliminary order came to be challenged before this Court by the respondent No.1 herein by filing the Special Criminal Application No.1506 of 2012. On 14th 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:Page 5 of 23
HC-NIC Page 5 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT "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 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.
Page 6 of 23HC-NIC Page 6 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 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 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."
11 The learned Single Judge took notice of the fact that in the entire preliminary order passed by the Additional Executive Magistrate, there was no finding or satisfaction worth the name recorded by the authority that on the date of passing of the preliminary order, the applicant herein and his wife were in possession of the disputed property.
12 The Special Criminal Application No.1506 of 2012, ultimately, came up for final disposal, and this Court, vide order dated 23th March 2015, disposed of the petition in the following terms:
"18. Having heard the learned counsel appearing for the parties and Page 7 of 23 HC-NIC Page 7 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 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 14 th 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.
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 14 th 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.
22. The proceedings of Case No.1 of 2012 pending before the Additional Page 8 of 23 HC-NIC Page 8 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 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."
13 Pursuant to the directions issued by this Court referred to above, the Additional Executive Magistrate passed the final order dated 30th May 2015. I may quote the relevant observations as under:
"Thus, the evidence adduced by the opponents, affidavits and the arguments have been taken into consideration, but as regards the disputed property, at the outset prior to the complaint is filed, since the Special Civil Suit No.316 of 2002 has already been filed in the Hon'ble Civil Court, this Court do not deem it appropriate to interfere with the disputed property and therefore considering the evidence which are adduced by the opponent No.1, catena of judgments and the other evidence, all the evidence indicate ownership. This Court has no vested right to adjudicate the ownership right of property. Except the adjudication of right or title of the property, the only possession of the property is to be adjudicated by this Court.
Considering the Court Commission held on 31st July 2002 with respect to the Special Civil Suit No.316 of 2002, the Opponents Nos.3, 4, 5 were having the possession of the disputed property, and on 6th May 2006, the Hon'ble Civil Court has granted stay qua the disputed property. Considering the application dated 11th January 2012 submitted by the opponents Nos.3, 4 and 5 in the Police Station for carrying out construction of the compound wall over the disputed property prior to the preliminary order dated 5th May 2012 passed by this Court and thereafter the construction work carried out by the opponents Nos.3, 4 and 5 over the disputed property, it establishes that two months prior to the lodgment of the case in this Court, the peaceful and actual possession was remained Page 9 of 23 HC-NIC Page 9 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT with the opponents Nos.3, 4 and 5. Upon consideration of the panchnama drawn by the police, statements (affidavits) of the concerned persons and the photographs, it appears that the opponent No.1 had come in the possession of the disputed property after the preliminary order dated 5th May 2012 passed by this Court. Therefore, there is reason to believe that till the claim having been dismissed for default, the possession was of the opponents Nos.3, 4 and 5, and thereafter upon the case is filed in this Court, no such evidence is adduced by the opponent No.1 as to how when and when he came in possession.
Thus, upon passing of the order by the Hon'ble Gujarat High Court in the Special Criminal Application No.1506 of 2012 with a direction to this Court to decide the issue of disputed property within the stipulated time, it appears to this Court that any party has 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 subsection (1), the Magistrate may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1). Hence, in the above findings as per detailed deliberations, the following order is passed:
ORDER It is held that the opponents Nos.3, 4 and 5 to be in peaceful and actual possession of the land registered as the revenue survey No.209, revised revenue survey No.111/3, situated at the mouje: Vesu, District: Surat, SubDistrict: Surat City on the date of filing of the proceedings in the Court and two months prior thereto.
In view of the final order is passed, a preliminary order dated 5th May 2012 passed by this Court stands automatically cancelled.
It is directed that as regards the disputed land property, no any breach of peace and tranquility shall be committed by the parties directly or Page 10 of 23 HC-NIC Page 10 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT indirectly. Even though any of the parties tries to commit breach of peace and tranquility directly or directly, the Police Inspector, Umara Police Station, Surat City is directed to take necessary legal action against them.
If any of the parties is aggrieved by this order, then they can approach before the competent Court in accordance with law within the stipulated time.
As regards the disputed property, in addition to the pendency of the Special Civil Suit No.316 of 2002, if any proceedings are pending before the Hon'ble Civil Court, then the same shall be binding to all the parties or if any civil suit is filed in future, then the parties shall act subject to the final outcome of the civil suit."
14 Thus, it appears that while disposing of the proceedings under Section 145 of the Cr.P.C., the Additional Executive Magistrate found the respondent No.1 herein and two of his family members to be in actual possession of the land in question on the date when the proceedings came to be initiated by the applicant and two months prior to the same.
15 The applicant herein, being dissatisfied with the order passed by the Additional Executive Magistrate, challenged the same before the Sessions Court by filing the Criminal Revision Application No.83 of 2015. The Criminal Revision Application No.83 of 2015 came to be allowed by the 5th Additional Sessions Judge, Surat vide order dated 23rd September 2015. I may quote the relevant observations made by the Additional Sessions Judge as under:
"12.4 In the present case, Ld. Executive Magistrate has not mentioned categorically in the order before the finding that their exists apprehension of disturbance of public peace. Significantly all parties and Ld. Executive Magistrate himself in his impugned order has admitted that Page 11 of 23 HC-NIC Page 11 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT civil suit involving the issue of title and possession between parties is pending and most importantly Hon'ble High Court has in the order dated 23.03.2015 specifically observed that ..... "due to pendency of suit the proceedings under Section 145 has become unwarranted" and hence it was incumbent upon the executive magistrate not to give any finding and to dispose the proceedings by directing parties to take recourse at Civil Court. And thus it appears that Ld. Executive Magistrate has overlooked the mandatory provision of law and judgments of Hon'ble Supreme Court and Hon'ble High Courts and the material direction of Hon'ble High Court in Special Criminal Application No.156/2015 dated 23.03.2015 to the effect that due to pendency of the civil suit the proceedings under Section 145 have become unwarranted and has given finding that opponents nos. 3 to 5 were having possession of the land on the date of complaint and prior to two months thereof and this being a patent illegality same needs to be intervened. Considering this aspect, I decide issue No.1 in the affirmative and hold that order of Ld. I/c. Additional Executive Magistrate needs to be quashed and set aside and following order is passed.
ORDER
1. Revision Application No.83/2015 is hereby allowed. Order passed by I/c Add. Executive Magistrate, Surat in case no: 01/2012 dated 30.05.2015 in proceedings under section 145 of Criminal Procedure Code is hereby quashed and set aside.
2. Parties will proceed their claims of title and possession before the Civil Court.
3. Record and proceeding of case No.1/2012 is hereby returned back to Ld. Executive Magistrate alongwith the copy of this order."
16 It appears that although the applicant succeeded before the Sessions Court in the revision application filed by him, yet the Sessions Court did not pass any order for restoration of the possession. The possession has continued to remain with the police, as directed by this Court. In such circumstances, the applicant thought fit to file a Criminal Miscellaneous Application No.3360 of 2015 in the Court of the 2 nd Additional Sessions Judge, Surat and prayed that the possession be handed over to him of the land in question. The said application came to be rejected by the 2nd Additional Sessions Judge, Surat vide order dated Page 12 of 23 HC-NIC Page 12 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 28th March 2016. While rejecting such application, the Court concerned observed as under:
"Perusing the above, it appears that the present Court has while adjudicating the revision application has clearly observed that the parties are at issue with respect to the claim of possession with disputed property and the said dispute is pending before the competent Court. I am also apprised by both the counsel that the Ld. Civil Court (Senior Division) has passed the order of status quo in the Special Civil Suit No.316/2002. In the said set of circumstances, at the first instance the present Court has neither observed nor adjudicated any aspect with respect to the possession of any of the parties with respect to the disputed property. The claim of the applicant that on 14.05.2012 as per the order passed by Hon'ble High Court, PI of Umara Police Station after carrying out Panchnama obtained the possession from the applicant in the context of this application is not relevant in as much as the suit property is the open land, hence at the time of drawing Panchnama, presence of any sign board, cannot determine the claim of possession. The possession in question either could be merely juxta. Considering above and the fact that the competent Civil Court is seized with the issue of title and possession, present Court has specifically directed the parties to proceed in respect to their claim before the competent Civil Court before whom the dispute had been pending even prior to the institution of section 145 proceedings. Under the circumstances, the present Court cannot adjudicate or cannot direct the PI of Umara Police Station to hand over the possession to any of the parties. It is further clarified that by quashing and setting aside of order passed by the Ld. Additional InCharge Executive Magistrate, Surat dated 30.05.2015, there is no possession vested with PI of of Umara Police Station and the parties can raise their dispute before the Civil Court which will determine the issue with respect to the title and possession accordingly. As regards the judgment of Hon'ble High Court in the case of Jinabhai Jerambhai Borda (supra) I agree with the argument of Ld. Advocate Mr. Thakkar that the facts in said judgment are materially different in as much as there was no issue between the parties with respect to the fact as to from whom possession of the property was taken whereas in the present case property possessed is open land and the issue of possession is pending before the competent Civil Court and hence the present Court cannot entertain or adjudicate this application and accordingly following final order is passed.
ORDER Present Criminal Misc. Application No.3360/2015 is hereby dismissed."
17 The record further reveals that thereafter, the applicant once Page 13 of 23 HC-NIC Page 13 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT again came before this Court by filing the Criminal Miscellaneous Application No.10734 of 2016 seeking certain directions with regard to restoration of the possession. The said application came to be disposed of by this Court vide order dated 29th July 2016 in the following terms:
"1. By this application, the applicantoriginal respondent no.2 has prayed for the following reliefs: "9(A) to clarify the order of this Hon'ble Court and direct the Executive Magistrate to pass orders under Section 145(6) of Cr.P.C. and also to restore the possession of the land to the applicant, consistent with the discussion and findings arrived at by the Sessions Court.
(B) Any other appropriate relief deemed just, fit and proper may please be granted."
2. The genesis of this application lies in the judgment and order passed by this Court dated 23.03.2015 in the Special Criminal Application No.1506 of 2012. After this judgment and order was passed substantial developments have taken place. First the proceedings before the Executive Magistrate under Section145 of the Cr.P.C. came to an end and thereafter, the revision application which was filed before the Sessions Court against the order passed by the Executive Magistrate also came to be disposed of.
3. In the course of the hearing of this application, I realized that if I have to grant the relief which has been prayed for, I will have to look into the legality and validity of the order passed by the Sessions Court in the Revision Application. If that be so, then I am of the view that since I do not have the determination of the subject concerned at present, the adjudication at my end will be without jurisdiction.
At this stage, Mr. Kavina, the learned senior counsel assisted by Mr. Kapadia, made a fervent appeal that he may be permitted to withdraw this application as he intends to file a substantive petition in this regard.
4. Permission as prayed for is granted. The application is disposed of. Notice is discharged."
18 Thereafter, the present petition came to be filed.
19 The issue in question, as on date, is whether the Sessions Court, Page 14 of 23 HC-NIC Page 14 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT while allowing the revision application, should have also issued appropriate directions as regards the restoration of possession of the land in question to a particular party.
● SUBMISSIONS ON BEHALF OF THE APPLICANT:
20 Mr. Percy Kavina, the learned senior counsel appearing with Mr.
N.M. Kapadia, the learned advocate for the applicant submitted that the Revisional Court once having reached to the conclusion that the proceedings initiated under Section 145 of the Cr.P.C. were thoroughly misconceived, then, in such circumstances, the Revisional Court was also obliged to pass a consequential order for restoration of the possession in favour of the applicant. According to Mr. Kavina, the possession was taken over by the Commissioner of Police, Surat from his client pursuant to the directions issued by this Court vide order dated 14th May 2012 passed in the Special Criminal Application No.1506 of 2012. Although the parties may be before the Civil Court, yet if possession is taken over by the Police of the land from a particular party, and ultimately, if that party succeeds in getting those proceedings quashed, then the Court owes a duty to restore the possession to that particular party. Mr. Kavina would submit that the entire approach of the Sessions Court is contrary to law, and the Sessions Court is not right in taking the view that it is for the Civil Court now to decide as regards the possession.
21 In such circumstances referred to above, Mr. Kavina, the learned senior counsel prays that there being merit in this application, the same be allowed and appropriate directions be issued.
● SUBMISSIONS ON BEHALF OF THE PRIVATE RESPONDENTS
NOS.1 AND 3:
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22 On the other hand, this application has been vehemently opposed
by Mr. Yatin Oza, the learned senior counsel appearing with Mr. Amit V. Thakkar, the learned advocate for the respondents Nos.1 and 3. Mr. Oza would submit that no error, not to speak of any error of law could be said to have been committed by the Sessions Court in passing the impugned order. Mr. Oza, in the alternative, submitted that, if at all the possession is to be handed over, the same should be handed over to his clients, as there is ample evidence on record to suggest that, his clients were in possessions and were forcibly dispossessed by the applicant herein.
23 In such circumstances referred to above, Mr. Oza prays that this Court may issue appropriate directions to the Commissioner of Police, Surat to hand over the possession of the land in question in favour of the respondent No.1.
24 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Revisional Court committed any error in passing the impugned order.
25 Section 145 falls in Chapter X of the Code of Criminal Procedure, 1973. The Chapter X of the Code relates to the maintenance of public order and tranquility. Section 145 of the Code reads thus :
"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 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 Page 16 of 23 HC-NIC Page 16 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 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 the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published 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, peruse 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 and which of the parties was, at the date of the order made by him under subsection (1), in possession of the subject of dispute:
Provided that if it appears to the Magistrate that any party has 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 subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to subsection (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.Page 17 of 23
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(b) The order made under this subsection shall be served and published in the manner laid down in subsection (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the saleproceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
26 Section 145 is intended only to provide a speedy remedy for the prevention of breaches of peace arising out of the dispute relating to the immovable property by maintaining one or other of the parties in possession.
27 The object of this section is to enable a Magistrate to intervene and pass a temporary order in regard to the possession of property in dispute, having effect until the actual right of one of the parties has been determined by a competent Civil Court. The Magistrates should guard themselves against the section being abused by person using it with the object of getting possession of the property and driving the other side to figure as a plaintiff and prove his title. In a proceeding under Section 145, a Magistrate has not to enter into the question of title or the right Page 18 of 23 HC-NIC Page 18 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT to possess and the foundation of his jurisdiction is the existence of a dispute likely to cause breach of the peace. The proceedings under Section 145 of the Code are quasijudicial and quasiadministrative in nature.
28 Section 146 of the Code confers power upon a Magistrate to attach subject of dispute and to appoint a Receiver. Section 146 of the Code reads thus :
"146. Power to attach subject of dispute and to appoint receiver. (1) If the Magistrate at any time after making the order under subsection (1) of section 145 considers the case to be one of 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.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just."Page 19 of 23
HC-NIC Page 19 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT 29 Section 146 is a corollary to Section 145. A Magistrate is empowered under Section 146(1) to attach the subject of dispute in three cases, namely, (i) if it is a case of emergency; or (ii) if none of the parties was in possession; or (iii) if no decision is possible as to the possession.
30 In the case on hand, indisputably, it is the applicant herein, who preferred an application before the concerned police about the dispute as regards the possession of the land in question with the other side. The police, in turn, thought fit to file an appropriate report before the Executive Magistrate in that regard, and the Executive Magistrate, in turn, thought fit to initiate proceedings under Section 145 of the Cr.P.C. When the matter reached before this Court, an order came to be passed on 14th May 2012 in the Special Criminal Application No.1506 of 2012 directing the Commissioner of the Police, Surat city to take over the possession of the property, after drawing a panchnama of the actual position as on that date. The Commissioner of Police, Surat city, accordingly, took over the possession, and as on date, the police is holding the possession as a neutral agency.
31 The Executive Magistrate, while passing the final order in the Section 145 of the Cr.P.C. proceedings, held the private respondents herein to be in peaceful and actual possession of the land on the date of filing of the proceedings and two months prior thereto. The Magistrate also passed an order directing both the parties to maintain peace and tranquility. The applicant herein, being dissatisfied with such order passed by the Executive Magistrate, challenged the same before the Sessions Court by filing a Criminal Revision Application No.83 of 2015. The Revisional Court, ultimately, allowed the revision application vide order dated 23rd September 2015 and took the view that the proceedings Page 20 of 23 HC-NIC Page 20 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT initiated under Section 145 of the Cr.P.C. were unwarranted. The Sessions Court, at the time of disposal of the revision application, did not say a single word as regards restoration of the possession. In such circumstances, the applicant herein had to file a miscellaneous application being the Criminal Miscellaneous Application No.3360 of 2015 in this regard before the Revisional Court. The Revisional Court, vide order dated 28th March 2016, thought fit to reject the same on the premise that it is now for the Civil Court to pass appropriate orders so far as the aspect of possession is concerned.
32 I am of the view that pending the proceedings under Section 145 of the Cr.P.C., if the authority concerned or any Court of law has passed an order of attachment of the property, then, on such proceedings being dropped or concluded finally, the necessary direction for the restoration of possession of the property so attached, has got to be passed in accordance with law. The police has been holding the possession of the property since long as a neutral agency. The proceedings have concluded finally. It would be too much to say that for the purpose of possession, the parties should obtain appropriate orders from the Civil Court in the civil suit, which is pending. If the Revisional Court thought fit to quash the order passed by the Executive Magistrate on the premise that the proceedings under Section 145 of the Cr.P.C. were unwarranted and pursuant to the initiation of such proceedings, if possession is taken over from a particular party, then the Court owes a duty to pass an appropriate order for restoration of the possession.
33 I am of the view that this aspect should be relooked by the Revisional Court, and after hearing both the sides, the Revisional Court shall pass an appropriate order as regards restoration of the possession. Let this exercise be undertaken by the Revisional Court independent of Page 21 of 23 HC-NIC Page 21 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT any findings as regards the possession recorded time to time by both the Executive Magistrate as well as by this Court, including the first order passed by the Sessions Court. For the purpose of deciding this issue of restoration of the possession, the Court concerned shall keep in mind two things: (1) who was in actual possession of the land in question on the date when the Commissioner of Police, Surat took over the possession by drawing a panchnama, and (2) what was the position prior to two months before the date on which the report of the police was received by the Executive Magistrate.
34 In the result, the impugned order passed by the 2nd Additional Sessions Judge, Surat dated 28th March 2016 in the Criminal Miscellaneous Application No.3360 of 2015 is quashed. The matter is remitted to the Court of the 2nd Additional Sessions Judge, Surat for fresh consideration of the issue as regards restoration of the possession to a particular party. Let this exercise be undertaken at the earliest, and preferably, within a period of two months from the date of receipt of this order, an appropriate order, in accordance with law, be passed. The order that may be passed by the Sessions Court shall be subject to the order that the Civil Court may pass in the civil proceedings between the parties.
35 With the above, this application is disposed of.
(J.B.PARDIWALA, J.) FURTHER ORDER After the judgment is pronounced, the learned counsel appearing for the respective parties brought to my notice few subsequent Page 22 of 23 HC-NIC Page 22 of 23 Created On Sun Sep 10 08:03:31 IST 2017 R/SCR.A/7677/2016 CAV JUDGMENT developments that have taken place in the matter. The civil suit, which was filed by the client of Mr. Y.N. Oza, the learned senior counsel appearing in the matter, was dismissed for default at one point of time. Later, the said suit was restored to its original file. The other side, being dissatisfied with such order of restoration of the suit, had come before this Court. This Court has upheld the order passed by the Civil Court restoring the civil suit. Thus, as on date, the Special Civil Suit No.316 of 2002 is on the file of the learned 5th Additional Senior Civil Judge, Surat. As the civil suit is of the year 2002 and the issues have already been framed long time back, the Court concerned shall now commence with recording of the oral evidence of the parties. With a view to bring an end to the dispute, the Court concerned is directed to take up the civil suit for hearing at the earliest and see to it that the same is disposed of on or before 31st May 2018 with the judgment. Both the sides are directed to cooperate with the Court concerned for effective and expeditious disposal of the civil suit. Till the appropriate orders are passed by the Sessions Court concerned, the earlier arrangement, as regards possession, shall continue.
(J.B.PARDIWALA, J.) chandresh Page 23 of 23 HC-NIC Page 23 of 23 Created On Sun Sep 10 08:03:31 IST 2017