Bombay High Court
Smt. Bhikubai W/O Nathu Patil And Ors. vs The State Of Maharashtra And Ors. on 9 April, 2002
Equivalent citations: (2002)104BOMLR926
Author: D.G. Karnik
Bench: D.G. Karnik
JUDGMENT D.G. Karnik, J.
1. Heard Shri Mantri, learned Counsel for the petitioners. Shri V.B. Ghatge, learned A.P.P., appears for Respondent No. 1 and waives service. Shri Deshmukh, learned Counsel i/b Shri Palnitkar, Advocate appears and waives service for Respondent Nos. 2 & 3.
Rule. By consent, Rule returnable forthwith.
2. The Respondent No. 2 was the owner of the land in dispute bearing G. No. 84 of revenue village Chamgaon, Taluka Dharangaon, District Jalgaon (hereinafter referred to as "the said land"). By an agreement of sale dated 14.6.1993, the Respondent No. 2 agreed to sell the said land to the petitioner No. 1 and executed a registered agreement of sale in her favour. It is alleged by the petitioners that on the next day i.e. on 15th June, 1993, the Respondent No. 2 handed over the possession of the said land to the petitioner. This fact of alleged handing over of possession is denied by the Respondent No. 2 who claims to be in possession of the said land. It is alleged that the permission of the Collector under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the B.T. & A.L. Act") is required to be obtained before the execution of the sale deed and hence the sale deed has not been executed till today for want of such permission. The petitioner, however, claims that out of the total agreed consideration amount of Rs. 92,600/-, an amount of Rs. 77,500/- was paid to the Respondent No. 2 and only a sum of Rs. 15,100/- is to be paid at the time of execution of the sale deed. It appears that dispute arose between the petitioner and the Respondent No. 2, which led the petitioners to file a suit bearing Special Civil Suit No. 254/98 in the Court of Civil Judge, Senior Division, Jalgaon, for specific performance of the agreement of sale dated 14.6.1993. In the said suit, the petitioner alleged that the possession of the said land was handed over to her in part performance of the agreement of sale and claimed injunction restraining the Respondent No. 2 from disturbing her possession and also claimed injunction restraining the Respondent No. 2 from alienating the suit property. The Trial Court granted exparte ad interim injunction restraining the Respondent No. 2 from alienating the suit property. The prayer of interim injunction restraining the Respondent No. 2 from disturbing the alleged possession of the petitioners is yet to be heard by the Civil Judge, Senior Division, Jalgaon.
3. The Respondent No. 3, who is the brother of the Respondent No. 2, addressed an application on 19.8.2001 to the Police Inspector, Dharangaon, alleging that he is in possession of the said land and that he has grown "Mung" crops which he wanted to harvest and, therefore, police protection be given to him. On such application, the Police Officer filed a report to the Executive Magistrate, under Section 145 of the Code of Criminal Procedure. The Executive Magistrate did not pass any preliminary order under Sub-section (1) of Section 145, as he was required to do, and as held by this Court in the case of Vishwanath Kashinath Virkar and Ors. v. Nitinchand Keshavji Gala and Ors. 1995 (2) Mh.L.J. 664 : 1993 (3) Bom. C.R. 525 : 1995 (1) All M.R. 23. Instead, the Executive Magistrate directly issued notices to the parties and after hearing them passed an order dated 1lth September, 2001, holding therein that the land is in possession of the Respondent No. 2 and the concerned parties should not create law and order problem. The order of the Executive Magistrate was challenged by the petitioners by filing of a Revision before the learned Sessions Judge, Jalgaon, who, by an order dated 1st January, 2002, passed in Criminal Revision Application No. 218 of 2001, confirmed the order of the Executive Magistrate. This order of the learned Sessions Judge is challenged in this writ petition.
4. Apart from an error committed by the Executive Magistrate in not passing the preliminary order under Sub-section (1) of Section 145 of the Code of Criminal Procedure, recording his satisfaction that there was an existing likelihood of breach of peace and thereafter serving the notices on the parties, there is another error in the order, making it unsustainable. While passing the order dated 11th September, 2001, the Executive Magistrate framed two points for determination. The point No. 2, which is relevant for the purpose of this petition, was as under:
Due to disputed land, law and order problem has been created or not?
5. The Executive Magistrate did not even discuss this point. What was said regarding point No. 2 is quoted below in verbatim:
Point 2 : Civil Suit is pending about ownership, concerned party should not create law and order problem.
6. Thus the Executive Magistrate did not even hold that the dispute was likely to cause breach of peace much less breach of public peace.
7. The learned Sessions Judge also did not address himself on the issue as to whether the dispute was likely to cause breach of peace. He simply observed:
I, therefore, hold that the S.D.M., Jalgaon has rightly considered the controversy between the parties raised before him on the basis of the report submitted by Vijaysing Salonkhi, B. No. 171 of Dharangaon Police Station under Section 145 of the Cr.P.C. considering the apprehension of likelihood of committal of breach of public peace and tranquillity and passed order against the revision petitioners.
8. Thus, there is no reasoned finding by either of the Courts below that the dispute between the parties was such as to cause or likely to cause breach of peace. The Courts below erred in passing the impugned orders under Section 145 of the Criminal Procedure Code.
9. In the result, petition succeeds. The impugned orders passed by the Executive Magistrate, Jalgaon and confirmed by the Sessions Court, Jalgaon are quashed. Rule made absolute in terms of prayer Clause (A). No order as to costs.