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1997 DIGILAW 1405 (RAJ)

Deva Ram v. State of Rajasthan

1997-11-25

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner, learned Public Prosecutor and the learned counsel for non-petitioners No. 2 and 3. This petition is directed against the order dated 4.9.1995 passed by the learned Additional Sessions Judge, Barmer in criminal revision No. 10/95 and the order dated 11.7.1995 passed by the learned Sub-Divisional Magistrate, Barmer under Section 146(1) Cr.P.C. By the aforesaid order dated 11.7.1995 the learned Sub- Divisional Magistrate attached the property in dispute under Section 146(1) Cr.P.C. A revision was filed against that order and the learned Additional Sessions Judge declined to interfere with the order passed by the learned Sub-Divisional Magistrate. Feeling aggrieved by both the orders the petitioners have approached this Court under Section 482 Cr.P.C. with a request that both the orders be quashed and set aside and the possession of the property should be restored to the petitioners as they have been regarded as the Khatedars in the land in dispute. (2). The facts of the case may be summarised as below ; (3). In village Booth Rathodan, Tehsil Chohatan there is an agricultural field bearing Khasara No. 217 measuring 55 bighas and 10 biswas in area. Kailash Dan (non-petitioner No. 2) filed a complaint before the learned Sub-Divisional Magistrate alleging there in that he was in the possession of that field for the last several years and that on 16.5.1995 when he went to his field he found that non-applicants (Deva, Taamala, Mugra, Shankara, Bhagwana and Gorkha) armed with lathies and axes went to the field and they made an attempt to take possession of the filed. At that time Pratap Purohit and Pata Purohit ran to the spot and they tried to perusade the non-applicants and told them not to take possession of the fields but the non- applicants did not pay head to their words. In the complaint filed by Kailash Dan it was further alleged that there was tension between the parties and there was every apprehension of breach of peace. The complaint filed by Kailash Dan (non-petitioner No.2) was sent to the Police for inquiry and police submitted its report. According to the report of the Police, Kailash Dan was in possession of the field in dispute for the last 18-20 years though the field bearing Khasra No. 217 was entered in the name of non-applicants. The complaint filed by Kailash Dan (non-petitioner No.2) was sent to the Police for inquiry and police submitted its report. According to the report of the Police, Kailash Dan was in possession of the field in dispute for the last 18-20 years though the field bearing Khasra No. 217 was entered in the name of non-applicants. It was also mentioned in the report that a criminal case No. 39/95 under Section 447 and under Section 3 (i) (iv) and (v) of the SC/ST (Prevention of Atrocities), Act was registered at the Police Station and after investigation a challan had been filed in that case. It was also mentioned in the report of the Police that Shanker Dan and others were claiming the field to be in their possession and were not vacating the field and since the season of cultivation was nearing there was likely to be a breach of peace involving loss of lives. It was, therefore, recommended by the Police Officer that the field of Khasra No. 217 should be taken in custody and a receiver should be appointed for the same. (5). After taking into consideration the report of the Police and the complaint filed by non-petitioner No.2 the learned Sub-Divisional Magistrate drew preliminary order under Section 145 Cr.P.C. and on being satisfied that the case was of an emergent nature, he directed the appointment of a receiver of field of khasra No. 217 and appointed the receiver of the field. Against that order the petitioners filed the revision petition which was rejected by the learned Additional Sessions Judge, Barmer vide order dated 4.9.1995. (6). The learned counsel for the petitioner has submitted that the petitioners are entered as Khatedars of the land in the revenue record and that in fact they are the persons who are in possession of the field in question and that the report given by the police to the learned Sub-Divisional Magistrate regarding the possession of non-petitioner No. 2 is wrong and that the learned Sub-Divisional Magistrate was not justified on the facts to direct the attachment of the field in dispute. It is also contended by him that when the property was in possession of one of the parties, the executive authorities were expected to protect that partys possession rather than deprive that party of its possession by directing the appointment of a receiver. It is also contended by him that when the property was in possession of one of the parties, the executive authorities were expected to protect that partys possession rather than deprive that party of its possession by directing the appointment of a receiver. The learned counsel for the petitioners has relied on Judgment of this Court Ilyas vs. State of Raj. (1). The learned Public Prosecutor has supported the order passed by learned Sub-Divisional Magistrate and he has prayed for the dismissal of the petition. (7). In this case it appears that the learned Sub-Divisional Magistrate passed a preliminary order under Section 145 Cr.P.C. on being satisfied that there is likelihood of breach of peace. Therefore, the proceedings under Section 145 Cr.P.C. had been lawfully instituted in his Court and the jurisdiction for exercise of powers under Sec. 145 Cr.P.C. was legally available to him. The only question to be decided is whether the learned Sub-Divisional Magistrate was justified in appointing a recei- ver of the disputed agricultural field when according to the report of the police the field was entered in the revenue record in the names of the petitioners but it was reported to be in actual possession of Kailash Dan (non-petitioner No. 2). (8). Section 146 Cr.P.C. reads as below : POWER TO ATTACH SUBJECT OF DISPUTE AND TO APPOINT RECEIVER 146. (1) 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, or if he decides that none of the parties was then in such poss- ession 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 right of the parties thereto with regard to the person entitled to the possession thereof, (9). Sub-section (1) of Section 146 Cr.P.C. empowers the Executive Magistrate to direct the attachment of the disputed property in one or more of the three contingencies (a) when the case appears to be one of emergency (b) when the Executive Magistrate decides that none of the parties was in such possession as is referred in Section 145 Cr.P.C. (c) when the Executive Magistrate is unable to satisfy himself as to which of them was in such possession of the subject in dispute. The first contingency in which the attachment of the property may be ordered, is the case of emergency. In the instant case the learned Sub-Divisional Magistrate has directed the attachment of disputed field on the ground of emergency. Hence the crucial question is whether the impugned order of the learned Sub-Divisional Magi- strate can be said to be contrary to law. (10). Violent disputes about the properties are aimed at obtaining immediate actual possession of the property. The disputing parties, cause apprehension, of breach of peace when they assemble with above mentioned object and they generally rely on the muscle power or the man power or the power of the fire arms and in such cases unless some immediate action is taken to prevent the violent dispute between the parties who are otherwise prepared to use violence against each other, peace is most likely to be breached and one can only guess, to what extent lives and properties of people would be involved in the dispute if such dispute starts. It is, therefore, necessary that such violent dispute must be nipped in the bud and must be avoided at every cost because once they start and blood starts oozing from the wounds it becomes very difficult to control the emotions. These are such cases of emergency in which the Executive Magistrate is required to take action for the protection of the society. If this object of law is kept in view the legislative intent behind the provisions of Section 146 Cr.P.C. which authorises the Executive Magistrate to attach the property in dispute in cases of emergency would become obvious. These are such cases of emergency in which the Executive Magistrate is required to take action for the protection of the society. If this object of law is kept in view the legislative intent behind the provisions of Section 146 Cr.P.C. which authorises the Executive Magistrate to attach the property in dispute in cases of emergency would become obvious. If there is an immediate apprehension of breach of peace on account of the dispute and parties be ready to use violence against each other, the circumstance may justify the taking of the property in the custody of the State so that the immediate object of obtaining possession by force may disappear and the violent dispute which is likely to occur may be prevented. If the property is taken in custody by the Executive Magistrate by passing an order of appointment of a receiver, the violence would be avoided because after the passing of an order of attachment, if either of the two contesting parties would try to obtain possession of the property by force they will have to use violence not against a private party but against the State and generally it is expected that no citizen shall have the power, means and the will to start violence against the State. This is how the immediate attachment of the property and appointment of receiver by the Executive Magistrate, successfully helps in avoiding violent contests between the parties to the dispute. I am, therefore, of the opinion that in cases of emergency the Executive Magistrate has the legal power to take the property in his own possession by appointment of a receiver so that the immediate cause of violent contenst may be taken out of the sight of the parties, who are bent upon using force against each other. Once violent conflict is successfully avoided and peace is restored the parties may be permitted to establish their rights in accordance with law and after ascertaining as to which of the party was in possession, the Executive Magistrate may decide whether the property in dispute is to be restored to the person who is entitled to possession there of or the parties should be asked to approach Civil Court for the establishing of their rights. (11). I have gone through the judgment given by Honble N.C. Kochar, J. in Ilyas vs. State of Rajasthan (supra). The facts of that case were different. (11). I have gone through the judgment given by Honble N.C. Kochar, J. in Ilyas vs. State of Rajasthan (supra). The facts of that case were different. In that case the property belonged to the State. It was allotted according to rules. After the allotment the allottees took possession of the field but the villagers were not willing to allow that party to take possession and cultivate the field, therefore, they posed a threat. The villagers in that case had neither possession nor title to the field. In view of those facts it was observed by the learned Single Judge of this Court that the duty of the Executive Officers was to protect the possession of the allottee rather to deprive the possession. I am, in respectful agreement with the observations made by Honble Justice N.C. Kochar but those observations have no applica- tion to this case because in this case there is a serious dispute as to which of the two parties were in possession on the day when the attachment was made. The police report shows that Kailash Dan non-petitioner No.2 was in possession where as the petitioners claim that they were in possession. There was a serious dispute regarding the possession and in these circumstances the principle pointed out in above mentioned cases does not apply to this case. (12). For reasons mentioned aobve, I do not find any reason to interfere with the order passed by the learned Additional Sessions Judge and the learned Sub-Divisional Magistrate. Teh petitioners should establish their rights in the lower Court according to law.