Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 1447 (RAJ)

Gulam Farid v. State of Rajasthan

1996-12-20

AMRESH KUMAR SINGH

body1996
Honble SINGH, J. – Heard learned counsel for the petitioners,learned Public Prosecutor and the learned counsel for non- petitioners Nos. 2 & 3 and perused the petition. (2). According to the averments made in this petition non-petitioners No. 2 and 3 filed a suit against the petitioners for declaration regarding the quarry No. 204 and 203/1 situated in Gunawati range. The petitioners case is that those land and quarries were in possession of the petitioners. In the plaint mentioned above a prayer was made for the issue of permanent injunction to the effect that the defendant would not interfere in the quarry No. 204 and 204/1 and easter side for which an application for allotment has been made. A copy of the plaint has been annexed with this petition.An application under order 39 rule 1 and 2 was also filed praying for ad-interim injunction against the defendants. The learned Additional Civil Judge (Senior Division) and Chief Judicial Magistrate Parbatsar after hearing both the parties refused to grant ad interim injunction. Feeling aggrieved by the order dated 1st May, 1993,passed by the learned Additional Civil Judge (Senior Divi- sion) and Chief Judicial Magistrate Parbatsar an appeal was filed before learned District and Sessions Judge, Merta on 11th May, 1993 along with a stay application moved under Section 151, order 39 rule 1 and 2 of the Civil Procedure Code. The learned District and Sessions Judge, Merta vide his order dated 11th June, 1993 refused to grant the stay order. The non-petitioners No. 2 and 3 thereafter filed an application under Section 145 and 146 of the Criminal Procedure Code before the Assistant Collector and Magistrate, Makarana in which they stated that they were in possession of quarries No. 204 and 204/1, and that the non-applicants wanted to encroach upon the aforesaid quarries. The fact that injunction applications filed by the non-petitioners Nos. 2 and 3 had been rejected by the trial court as well as by the District and Sessions Judge, Merta was concealed. After hearing the arguments advanced on behalf of non-petitioner Nos. 2 and 3 the learned Additional Collector and Magistrate, Makarana attached the quarries No. 204/and 204/1 and appointed the Station House Officer of the Police Station, Makarana as the receiver to these quarries. After hearing the arguments advanced on behalf of non-petitioner Nos. 2 and 3 the learned Additional Collector and Magistrate, Makarana attached the quarries No. 204/and 204/1 and appointed the Station House Officer of the Police Station, Makarana as the receiver to these quarries. Feeling aggrieved by the order passed by the learned Additional Collector Magistrate, Makarana the petitioners has approached this Court by filing the petition under Section 482 of the Criminal Procedure Code. (3). I have perused the certified copy of the application filed by non-petitioner Nos. 2 and 3 under Section 145 and 146 of the Criminal Procedure Code in the Court of Additional Collector and Magistrate,Makarana and also perused the affidavits filed with the application and the copy of the application moved under Section 146 of the Criminal Procedure Code and the certified copy of the order passed by the learned Additional Collector and Magistrate, Makarana. In their application dated 25th June,1993 non- petitioner Nos. 2 and 3 alleged that they were in possession of quarries No. 204 and 204/1 situated in village Gunawati under a licence which was valid up to 30 th June, 1996 and that the non- applicant had no right or possession over the above quarries and they wanted to committ tress-pass on the quarries. It was further stated in Para 3 of the application that the applicants had filed a civil suit in which direction to maintain status quo was given by the court but on 1st May, 1993 that direction was set aside. There was clear averment in the application that Gulam Farid and others wanted to unlawfully possess the quarries in dispute and that they threw stones and attempted to commit tress-pass and also committed theft of drilling machine and were bent upon taking possession of quarries by force and that the situation was of serious one and there was apprehension of breach of peace at any time. The application filed by the non- applicant Nos. 2 and 3 was supported by the affidavits of Haji Gulam Rasool and Anwar Ahmed. The application under Section 146 of the Criminal Procedure Code also contains similar facts. The application filed by the non- applicant Nos. 2 and 3 was supported by the affidavits of Haji Gulam Rasool and Anwar Ahmed. The application under Section 146 of the Criminal Procedure Code also contains similar facts. The learned Additional Collector and Magistrate, Makarana after perusing the applications, affidavits and after hearing the arguments passed by the order dated 25th June, 1993, in which he observed that after hearing the applicants and perusing the record he was satisfied that there was a dispute between the parties in respect of the quarries and that on account of that dispute there was apprehension of breach of peace. He, therefore, directed that quarries No. 204 and 204/1 be attached and the appointed Station House Officer of Police Station, Makarana to act as receiver of the quarries. It appears that non-applicant Nos. 2 and 3 did not bring to the notice of the learned Additional Collector and Magistrate,Makarana the orders passed by the trial court as well as by the lear- ned District and Sessions Judge, Merta on the applications moved for grant of temporary injunction. (4). The learned counsel for the petitioners has submitted that since a civil suit was pending in the Civil Court, the learned Additional Collector and Magistrate, Makarana had no jurisdiction to initiate the proceedings under Section 145 and 146 of the Criminal Procedure Code and much less to appoint the receiver for quarries No. 204 and 204/1. (4). The learned counsel for the petitioners has submitted that since a civil suit was pending in the Civil Court, the learned Additional Collector and Magistrate, Makarana had no jurisdiction to initiate the proceedings under Section 145 and 146 of the Criminal Procedure Code and much less to appoint the receiver for quarries No. 204 and 204/1. Sub-section (1) of Section 146 of the Criminal Procedure Code the Magistrate has been given power to attach the subject of dispute until a competent Court has determined the right of the parties there to with regard to the person entitled to the possession there of.The determination by a competent court of the rights of the parties spoken by Section 146 sub-section (1) of the Criminal Procedure Code need not necessarily be a final determination.The determination of rights contemplated by Sub-section (1) of Section 146 of the Criminal Procedure Code may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in subject of the matter of the dispute pending for the final decision about suit the moment the competent court does so, even at the interim stage, the order of attachment passed by the Magistrate under Sub-section (1) of Section 146 of the Criminal Procedure Code has to come to an end. Otherwise there will be inconsistency between the order passed by the Civil Court and the order of the attachment passed by the Magistrate under Sub-sec- tion (1) of Section 146 of the Criminal Procedure Code. The proviso to sub-section (1) of Section 146 of the Criminal Procedure Code itself contemplates a situation in which the Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of peace with regard to subject of the dispute. Therefore, when a Civil Court passes an order of injunction or receiver,it is the Civil Court which is seized of the matter and any breach of order can be punished by it according to law. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of peach with reference to the subject of dispute. Hence on the passing of the interlocutory order by the Civil Court, it can legitimately be said that there is no longer any likelihood of the breach of peach with reference to the subject of dispute. If the Civil Court does not appoint the receiver that the Magistrate make an arrangement for looking after the property by appointing a receiver.However, even when such a receiver is appointed and the Civil Court subsequently appoints a receiver of its own, the Magistrate has to 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 thereafter discharge the receiver appointed by him. The observation made by the Honble Apex Court in Dharampal Vs. Ramshri (1) lay down the law in this behalf. (5). During arguments it was brought to my notice that the petitioners Gulam Farid and others filed a revision in the Court of learned District and Sessions Judge, Merta, against the order dated 25th June, 1993 passed by the learned Additional Collector and Magistrate, Makarana.That revision petition was filed on 29th June, 1993. (6). This petition was filed on 8th September,1993 where as the revision petition filed by the petitioners in the court of learned District and Session Judge, Merta as early as on 29th June,1993. The petitioners have not mentioned in their petition that a revision petition had been filed by them before the learned District and Sessions Judge, Merta. The order passed by the learned District and Sessions Judge, Merta, on the revision petition filed by the petitioners against the order dated 25th June , 1993 passed by the learned Additional Collector and Magistrate, Maka- rana has not been placed on record. (7). A perusal of the applications moved before the learned Additional Collector and Magistrate , Makarana under Sections 145 and 146 shows that they contain facts which indicate that there was a dispute regarding the possession of quarries No. 204 and 204/1 between the parties. And that the dispute was of such a nature as to cause breach of peace if immediate measures were not taken to avoid the same.Therefore, it cannot be said that the learned Additional Collector and Magistrate, Makarana had no jurisdiction to initiate the proceeding under Section 145 (1) of the Criminal Procedure Code. And that the dispute was of such a nature as to cause breach of peace if immediate measures were not taken to avoid the same.Therefore, it cannot be said that the learned Additional Collector and Magistrate, Makarana had no jurisdiction to initiate the proceeding under Section 145 (1) of the Criminal Procedure Code. So far as appointment of receiver is concerned, sub-section(1) of Section 146 of the Criminal Procedure Code empowers a Magis- trate to appoint a receiver in a case of emergency as well as in those cases in which he comes to the conclusion that none of the parties was then in such possession as was referred in Section 145 or if he unable to satisfy himself as to which of them was in such possession of the subject of dispute and the order of attachment which he may pass under Sub- section (1) Section 146 of the Criminal Procedure Code can legally continue until the competent Court has determined the rights of the parties there to with regard to person entitled to possession of the property in dispute and the proviso given below the Sub-section (1) of Section 146 of the Criminal Procedure Code further provides that the attachment may be with drawn as soon as the Magistrate is satisfied that there is no longer any likelihood of breach of peace with regard to subject of peace. (8) The powers conferred on the Magistrate under Section 145 and 146 of the Criminal Procedure Code are obviously for the purpose of preventing the commission of breach of peace on account of dispute regarding possession of property referred to in Sections 145 and 146 of the Criminal Procedure Code. The powers under Section 145 and 146 of the Criminal Procedure Code have been conferred on the Magistrate not with a view to create an authority parallel to the authority of Civil Court for adjudication of Civil rights.These powers under Section 145 and 146 of the Criminal Procedure Code appear to have been conferred with the dominant object of preserving peace if there be apprehension of peace on account of a dispute about the possession of the property between two or more parties. There is thus a public purpose behind the conferment of powers on the Magistrate under Sections 145 and 146 of the Criminal Procedure Code and that public purpose is a larger one. There is thus a public purpose behind the conferment of powers on the Magistrate under Sections 145 and 146 of the Criminal Procedure Code and that public purpose is a larger one. It is to preserve peace in the society of human beings when peace is endangered by a dispute regarding possession of a property. In order this larger object of preserving peace in the society may be fulfilled, powers conferred upon the Magistrate under Sections 145 and 146 of the Criminal Procedure Code cannot be curtailed to the extent of depriving him of the legal jurisdiction vested in him to intervene if peace is endangered on account of dispute between parties for the possession of a property.At the same time the jurisdiction of the Magistrate under Sections 145 and 146 of the Criminal Procedure Code cannot be enlarged to such an extent as may curtail civil rights of the citizens or produce inconsistency with the orders passed by the competent Civil Court.The Magistrate exercising powers under Sections 145 and 146 of the Criminal Procedure Code, like any other Officer on whom the powers have been conferred for public purpose has to take into consideration the matters placed before him for the purpose of deciding what he should do in a given set of circumstance. It is for the parties to place the matters before him if there be any such matter which is relevant to the matter in dispute. The Magistrate cannot be expected to keep himself informed to all the decisions given by the Civil Court in the past or the cases pending in the Civil Court regarding property situated in his territorial jurisdiction.The legality or otherwise of the order passed by the Magistrate, therefore,should be considered with reference to the material placed before him according to law and not with reference to material which has not been brought to his notice by the parties. The submission of the lear- ned counsel for the petitioners is that since non-petitioner Nos. 2 and 3 had already filed a Civil Suit in the Court of learned Additional Civil Judge (Senior Division) and Judicial Magistrate, and that suit was pending and an application for injunction had been rejected the Additional Collector and Magistrate , Makarana had no jurisdiction to initiate proceeding under Section 145 of the Criminal Procedure Code. This submission does not appear to be good in law. This submission does not appear to be good in law. There is nothing in Section 145 of the Criminal Procedure Code to indicate that if a Civil Suit is pending regarding a property then in no case a Magistrate would be empowered to initiate proceeding under Section 145 of the Criminal Procedure Code even if he is satisfied that a dispute is likely to cause breach of peace and such dispute concerning any land or water or the boundaries within his jurisdiction. Mere pendency of the civil suit in Civil Court does not deprive the Executive Magistrate of his jurisdiction under Section 145 of the Criminal Procedure Code if, the conditions necessary for exercise of jurisdiction under Section 145 of the Criminal Procedure Code are present.Because the object of Section 145 of the Criminal Procedure Code is not the adjudication of the rights but prevention of breach of peace so that peace in society may be preserved. Besides an Executive Magistrate is not supposed to be aware of all those facts which have not been made to his notice according to law by the parties. In this case it appears that the order of the learned Additional Civil Judge (Senior Division) and Chief Judicial Magistrate and the order passed by the learned District and Sessions Judge, Merta were not produced before him. If the petitioners Gulam Farid and others wanted the learned Additional Collector and Magistrate Makarana to take into consideration those orders it was their duty to place certified copies of the orders before the learned Additional Collector and Magistrate,Makarana for necessary action. (9). So far as the order regarding appointment of receiver of quarries No. 204/and 204/1 is concerned,the jurisdiction of the Magistrate to appoint a receiver is ousted in those cases only in which a competent Civil Court has appointed a receiver or tentatively determined the right to possess the property in dispute by passing an appropriate order under Section 151 of the Civil Procedure Code under order 39 rule 1 and 2 of the Civil Procedure Code. In the instant case it does not appear that the learned Additional Civil Judge(Senior Division) and Chief Judicial Magistrate or the District and Sessions Judge, Merta appointed any receiver of the quarries in dispute. In the instant case it does not appear that the learned Additional Civil Judge(Senior Division) and Chief Judicial Magistrate or the District and Sessions Judge, Merta appointed any receiver of the quarries in dispute. The jurisdiction of the learned Additional Collector and Magis- trate, Makarana was, therefore, prima facie not denied to him, However, I do not want to express any final opinion about this point because revision had been filed by the present petitioners in the Court of learned District and Sessions Judge, Merta. (10). For reasons mentioned above in my opinion it is not a fit case in which power under Section 482 of the Criminal Procedure Code should be exercised. The petitioners have moved revision petition before the learned District and Sessions Judge, Merta against the impugned order of the learned Additional Collector and Magistrate, Makarana and they should be held bound by the order of the learned District and Sessions, Judge, Merta. (11). For reasons mentioned above the petition deserves to be dismissed and is hereby dismissed. The stay order dated 23rd November, 1994 is hereby vacated.