Patna High Court
Baijnath Choubey And Ors. vs Dr. Ram Ekbal Choubey And Ors. on 24 February, 1981
Equivalent citations: 1981(29)BLJR530
JUDGMENT V. Mishra, J.
1. This is an application under Section 482 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) for quashing the proceeding under Section 145 of the Code, in which the disputed land has been attached and certain consequential order has been made.
2. The parties to the application are very close relations. Sri Kishun Choubey, Paltan Choubey, Purushotam Choubey and Deomuni Choubey were full brothers. In the lower Court a proceeding under Section 145 of the Code was initiated on an application filed by persons who represented the heirs of Paltan Choubey. Purushotam Choubey and Deomuni Choubey as first party. The heirs of fourth brother Sri Kishun Choubey were the second party there. In this Court some of the members of the second party in the lower Court are petitioners and the rest are opposite party second and third sets. The members of the first party in the lower Court are opposite party first set in this Court.
3. On 17.11.1980, the opposite party first set (in this Court) filed two applications (annexures 1 and 1-A to the petition) before the subdivisional Magistrate, Sasaram. In the first application it was said that in 1971 a partition suit had been filed for partition of the properties amongst the heirs pf the four branches mentioned above. That partition suit, however, abated on account of the consolidation proceeding under operation in the area. Since however, there could not be partition by metes and bounds and the parties could not pull on together, it was decided that the cultivation would be managed by a particular member of the family who would render accounts and after deducting the cost of cultivation would distribute the produce amongst the co-sharers according to their shares. According to the said arrangement, the land in dispute was under cultivation of the members of opposite party first set who were cosharers to the extent of 3/4th share. It was, however, said that though they had cultivated the land and grown paddy therein, the heirs of the fourth brother (co-sharers to the extent of l/4th share only) were cut to harvest the paddy and unless immediate steps were taken there was danger of crops being looted away. Prayer was, therefore, made for starting a proceeding under Section 145 of the Code and attaching the lands under Section 146 of the Code and also for getting the crops harvested through machinery of the Court. The second petition also disclosed that members of 2nd party were bent upon cutting the paddy and specific prayer had been made for getting the paddy harvested, sold and for getting the sale proceeds deposited in the treasury. The area of the land involved is about 75 acres. The details are there in annexure '1'.
4. On 17.11.1980 itself, the Subdivisional Magistrate heard the advocate of opposite party first set (here) and feeling satisfied that there was immediate apprehension of breach of peace between the members of the two parties before him passed the following order;
Heard the learned Advocate for the petitioner and also perused the complaint. The lands given in the schedule of the petition and noted below is said to be the joint property of four co-sharers of which there are three co-sharers in the first party.
It is alleged that the fourth co-sharers i.e. Ramadhar Chaubey and others are bent upon forcibly harvesting the entire standing crops in the disputed land due to which there is immediate serious apprehension of breach of the peace unless preventive action is taken. Procedure to harvest the paddy crop standing on the disputed land, is clearly laid down and the possession of each co-sharer is determined in respect of different plot and areas of the lands, the disturbances to the public peace and tranquillity are bound to take place and the possible blood-shed cannot be averted.
I am satisfied that there is immediate apprehension of the breach of the peace between the members of the 1st party and that of the 2nd party Dr. Ramekbal Chaubey and Ors. v. Ramadhar Chaubey and Ors.
It is, therefore, expedient to take recourse to the preventive action under the Code of Criminal Procedure.
Under powers conferred upon me under Section 145 Cr. P. C. I hereby, draw a proceeding under the said section against the parties concerned. In respect of the lands detailed in the Schedule of the petition. I further forbid the parties to go over the land in question and do hereby direct both the parties to file their written claims by 1.12.1980.
Further in order that peace is conserved and the standing crop is not destroyed, I hereby attach the lands in dispute under Section 146(1) Cr. P. C. and do hereby direct that lands in dispute will remain so attached unless the factum of possession of each co-sharers is clearly defined by this Court or any other Court of competent jurisdiction.
The O. C. Rajpur O. P. P. S. is hereby authorised and directed to get the standing crops on the disputed land, harvested, thrasheet and get the proceeds sold with the Government agency at the prescribed rate after obtaining permission from this Court. The sale proceeds will be deposited with the Subdivisional Nazir and will remain so deposited till the disposal of this case.
The O/C concerned will maintain detailed account of all receipts and expenditure and will submit to this Court for the account for scrutiny.
The O/C will have all powers conferred upon a receiver under the Civil Procedure Code in respect of land in question and he will be subjected to the same responsibility as a receiver in respect of the property mentioned in the Schedule of the petition.
Send copies of this order to the O/C concerned and to the parties and put up on 1.12.1980".
It would thus appear that the Magistrate initiated the proceeding under Section 145(1), attached the land under Section 146(1) on the ground of emergency, and directed the officer in charge of the police station to get the crops harvested, the proceeds sold and to deposit the amount with the Nazir. Powers of a receiver of a Civil Court were also confirmed (Sic) on him. Being aggrieved by the above order, this application was filed in this Court on 10.12.1980. The application was admitted on 11.12.1980 and the operation of the impugned order was stayed. Thereafter, on a petition filed by opposite party first set for vacating the stay order the order was modified on 23.12.1980 to the extent that the petitioners (here) were allowed to cut the paddy but were required to keep accounts and were made answerable to the Court.
5. The validity of the Magistrate's order has been challenged in this Court on the following grounds;
(1) A Magistrate has no powers to forbid a party to go over the land in the dispute in a proceeding under Section 145 of the Code.
(2) The order of attachment is illegal and without jurisdiction.
(3) The Magistrate has no jurisdiction to define the share of co-sharers for deciding the question of possession.
(4) The order appointing officer in charge of a police station as a receiver is bad.
(5) When admittedly the parties are in joint possession, proceeding under Section 145 of the Code is misconceived also because a consolidation proceeding is pending in respect of the land in dispute.
6. Before taking up the points raised, I may mention that the learned Counsels of both parties agreed that the proceeding under Section 145 of the Code has been started in accordance with law, and in the conditions obtaining, it has to continue. It is the attachment of the land and appointment of receiver which is the bone of contention between the parties, In this background, I may proceed to the points raised.
7. Point No. 5-After some hearing this point was given up. No law could be cited in support of the contention raised. If by any arrangement any co-sharer cultivates any land separately and there is any dispute regarding the same, the breach of peace has to be prevented, and it cannot be put of on the ground that the partition by metes and bounds had not taken place amongst the co-sharers. No law could be pointed out, also for showing that during the consolidation proceeding, a proceeding under Section 145 of the Code would abate or would not proceed.
8. Point No. 1-It has been admitted by the learned Counsels of both the part is that this part of the order is not in accordance with the provisions contained in Section 145 of the Code and as such it cannot be upheld.
9. Point No. 3-The learned Counsels of both the parties ultimately agreed that the Magistrate cannot define the shares of the co-sharers. It is also doubtful as to what the learned Magistrate meant when he said that the land will remain attached "unless the factum of possession of each co-sharer is clearly defined by this Court or any other Court of competent jurisdiction". I am afraid if the Magistrate exactly meant that he could define the share of the parties. In my opinion he only intended to find the possession of the parties over the land he did not intend to find if that possession was in accordance with the defined shares of the parties. Be that as it may, there can be no doubt on the point that the Magistrate has only to find as to who was in actual possession, irrespective of his title and share.
10. Point No. 2-The first ground of attack is based upon the use of the word 'after' in Section 146(1) of the Code under which the land has been attached. Section 146(1) of the Code reads as follows:
If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, of 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 hereto 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.
In the opening sentence itself the word after occurs. On basis of this word it has been argued that there cannot be a composite order under Section 145(1) and Section 146(1). The contention is that only after passing an order under Section 145(1), after some time or at any time, the order of attachment can be made but not at the same time and by the same order. Reliance has been placed on a Bench decision of this Court by the petitioners counsel on the case of Khedu Mahton and Ors. v. Smt. Prem Sundari 1975 B.B.C.J. 856. According to that decision it was incumbent upon the Magistrate to hear both the parties and apply his independent mind to the question as to whether any of the three contingencies mentioned in Section 146(1) existed vesting in him jurisdiction to pass an order of attachment. This position was, however, disputed later and the matter was resolved by a Full Bench decision of this very Court in the case of Gaya Singh and Ors. v. Duman Singh . That case had been referred to the Full Bench by a Division Bench. The first question for consideration was whether under the provision of the new Code a Magistrate initiating a proceeding under Section 145(1) of the Code could attach the subject matter of the dispute under Section 146(1) without bearing the parties. Their Lordships after considering some cases including the case of Khedu Mahton v. Smt. Prem Sundari (supra) and a Supreme Court case of Chandu Naik v. Sitaram B. Naik , observed as follows:
In view of this pronouncement it has to be held that even under the new Code it is open to the Magistrate while initiating a proceeding under Section 145 to attach the subject matter in dispute without hearing the other side....
Thus there is no scope for any argument now that a composite order of initiating the proceeding and of attaching the land, even without hearing the other side is quite legal.
11. The second ground of attack is that there is no material to show that any emergency existed giving to the Magistrate a jurisdiction to attach the land. In this connection reference may be made to the second and third paragraphs of the disputed order quoted at page 3 of this judgment. The Magistrate felt satisfied that Ramadhar Choubey and others were bent upon forcibly harvesting the entire standing crop on the disputed land and there was immediate apprehension of breach of the peace. He also felt satisfied that it was necessary for him to take action under Section 145(1) for preventing the breach of the peace and possible blood-shed. Having felt satisfied to this extent, he drew up the proceeding under Section 145 of the Code. As I have already said in paragraph 6 the parties have conceded that it is a fit case for initiating proceeding under Section 145. In that very order while attaching the land it has been mentioned that the land was attached "in order that peace is conserved and the standing crop is not destroyed". The word 'emergency' which is one of the conditions of attachment under Section 146(1) has not been used in the order. There are two other conditions in which the land can be attached but the case does not come under them. This is a case of attachment on the ground of emergency alone. It has, therefore, been argued that there is no finding of the Magistrate that any 'emergency' existed giving to the Magistrate a jurisdiction to attach the land. Reliance has been placed on a single Judge decision in the case of Ram Bachan Singh and Anr. v. Ram Sagan Singh and Anr. 1970 P.L.J.R. 677., for the proposition that the Magistrate should show in his order how a case of emergency was made out, otherwise his order may not be backed by any reasoning, and every legal order where there are directions in the law to give reasonings or not, must be backed by reasons. So far as the order regarding attachment is concerned the order in that case ran as follows:
Draw proceeding under Section 145 Cr. P. C. restraining members of both the parties from going over the land in dispute. Disputed lands are attached....
This portion of the order was struck down as the Magistrate had not expressed in his order that there was a case of emergency. What weighed with the Hon'ble Judge was that the reason behind the order of attachment had not been mentioned. In the instant case it has been said that the land was being attached for conserving peace and saving the standing crops from destruction. This case is therefore, clearly distinguishable from Ram Bachan Singh's case. The petitioner's counsel has relied upon yet another single Judge decision of this Court in the case of Sardar Amrit Singh and Ors. v. Gyandeo Sharma and Anr. 1977 B.B.C.J. 658. It has been held therein that mere finding about an apprehension of breach of peace may not be sufficient for attaching the land and therefore a case of emergency as contemplated under Section 146 of the Code has to be distinguished from mere case of apprehension of breach of peace. This is based upon the law that an apprehension of breach of peace is a must for initiating a proceeding under Section 145 and in all such proceedings attachment is not necessary. There can be no two opinions on this proposition of law but this very authority also clearly says that it is not necessary for the Magistrate to say expressly that a case of emergency has been made out. It can even be inferred from the order. I would better quote the relevant portion of the report itself;
The only question is whether it was a case of emergency in the opinion of the Magistrate and therefore, he could pass an order of attachment under Section 146(1) of the Code. The Magistrate has not said expressly that it was a case of emergency. It may be that even in such cases where the Magistrate does not say that the case is one of emergency but if the circumstances are such that the superior Court thinks that the case was one of emergency then that Court may not interfere.
I am perfectly in agreenient with the view taken in Sardar Amrit Singh's case. In my opinion if the existence of an apprehension of breach of peace is a condition precedent for drawing up a proceeding under Section 145(1), it would become a case of emergency if that apprehension is imminent. I would thus make a distinction between apprehension of breach of the peace and imminent apprehension of breach of peace. The latter would obviously be a case of emergency.
12. It would thus appear that it is not the use of the word emergency which gives jurisdiction to the Magistrate for attaching the land rather it is the existence of the emergency which gives the jurisdiction and where the word 'emergency' has not been used the order can be referred to for finding if an emergency really existed. If the word emergency has been used but the order does not indicate that any emergency really existed the order of attachment on the ground of emergency cannot be supported. A second look at the order in question quoted at pages 3 and 4 would, therefore, be necessary to examine if it discloses any apprehension of imminent breach of peace. In the second paragraph of the order it has been mentioned that there was immediate serious apprehension of breach of peace, and unless steps were taken disturbance to the public peace and tranquillity was bound to take place and possible blood-shed could not be averted. The third paragraph of the impugned order shows the Magistrate's satisfaction that there was "immediate apprehension of breach of peace between the members of the first party and that of the second party" In the 7th paragraph of the order while attaching the land the Magistrate has again said that it was necessary for conserving peace and saving the standing crops. Now if a composite order under Sections 145(1) and 146(1) is permissible in law (as held by Full Bench in the case of Gaya Singh) the whole order should be considered for finding out if the case for attachment is made out or not. It should not be necessary to say in the first part of the order that there is apprehension of breach of peace for drawing up a proceeding under Section 145 and in the second part of the order repeating the same thing and adding that the danger is imminent, for attaching the land. If, therefore, in first part of the order itself it has been said that a danger is imminent it is sufficient both for drawing up the proceeding and for attaching the land. At the risk of repetition, I may say that if the Magistrate has omitted the use of the word 'emergency' that by itself will not vitiate the attachment if the order otherwise discloses the emergency. Needless to say that the satisfaction of the Magistrate is always subjective satisfaction and it can not be substituted by the satisfaction of any superior Court. I have also not been called upon by the parties to examine this aspect of the order. I would, therefore, find the order of attachment to be legal and with jurisdiction.
13. Point No. 4-The Magistrate authorised the officer in charge of Rajpur O. P. P. S. to get the standing crops on the disputed land harvested, thrashed and sold and to deposit the sale proceeds. He was also given powers of a receiver under the Code of Civil Procedure. No infirmity in this part of the order could be shown by the parties. Sub-section (2) of Section 146 itself authorises the Magistrate to pass such orders. This order was made when the crop was ready for harvesting and there was hardly any time to hear the other party before making the order. In law, therefore, it was not bad. When the present application was filed in this Court some alteration was ordered with respect to this portion and the petitioners (here) were allowed to cut the paddy and petitioner No. 1 was asked to keep accounts of the harvested crops. Those crops have now been harvested and so there is sufficient time for the Magistrate to make proper arrangement for looking after the property after hearing both the parties. The attachment cannot be withdrawn because under Section 146(1) the attachment has to continue until a competent Court has determined the rights of the parties with regard to the person entitled to possession thereof that is, till the disposal of the proceeding under Section 145 of the Code. This may take sufficiently long time. I do not think that the officer in charge of a police station can be left with the management of about 75 acres of land. It cannot be possible for him to exercise any effective control over cultivation, harvesting etc. I would thus direct the Magistrate to hear the parties on this point and pass order thereafter keeping in view the interest of all co-sharers. If the parties agree to the appointment of a particular person as a receiver or to the appointment of more than one as joint receivers from amongst the parties, or if they all agree to any particular arrangement that would be in the interest of all concerned. If they, however, do not come to any agreement the Magistrate may make such arrangement as he considers necessary or may appoint a receiver under Section 146(2) of the Code. This the Magistrate should do without any loss of time.
14. In the result it is ordered that:
(1) The proceeding under Section 145 of the Code shall proceed. Efforts will, however, be made to dispose it of as quickly as possible.
(2) The attachment of the lands in dispute will continue.
(3) The fresh arrangement for looking after the property will be made as indicated in para 12.
(4) The order prohibiting the parties to go over the land is vacated of course they will not commit any breach of peace there.
(5) The Magistrate shall not define the share of the co-sharers but shall confine himself to the decision on the question of possession.
In paragraph 3 (j) of the counter affidavit on behalf of the petitioners to the application filed on behalf of opposite party Nos. 1 to 4 it has been mentioned that the Subdivisional Magistrate is common indirect relation of the family and was perhaps influenced by the member of the opposite party firs set, some of whom are very high officials. At the time of argument a request was, therefore, made also for transferring the case to any other Court. There is no regular transfer petition. The allegation is too vague to be acted upon by this Court. It will however be open to Mr. R. D, Ojha to transfer the case to the file of any competent Magistrate, if there be any truth in the allegation, or if he feels any embarassment whatsoever.
15. By order dated 23.13.1980 of this Court the petitioners were allowed to cut the paddy standing on the disputed land and petitioner No, 1 was further directed to keep the accounts of all the paddy harvested by him. I am informed that accounts have not been submitted. Even if any portion of the paddy had been cut by the petitioner before that order was passed, the accounts had to be submitted by petitioner No. 1. Petitioner No. 1 will, therefore, render accounts within a fortnight from today in the Court below failing which action for contempt and other actions permissible under law will be initiated against him by the Magistrate.
16. With the modifications and directions in paras 14 and 15 the application is dismissed.