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2001 DIGILAW 216 (HP)

GHATAROO RAM v. SUKH RAM

2001-08-30

A.K.GOEL

body2001
JUDGMENT ARUN KUMAR GOEL, J. (Oral).-This is a petition under Section 482 Cr.P.C. read with Article 227 of the Constitution of India against the order passed by the learned Sessions Judge, Kangra at Dharamshala is Criminal Revision No.1 of 1998 dated June 11,1999. 2. By means of impugned order it has been held that since the order challenged before the revisional court below was passed by the Tehsildar as a Revenue Officer and not under Section 145 Cr.P.C, therefore, revision was not maintainable. In these circumstances, present petition has been filed. 3. With a view to properly understand this case, few facts need to be noted. 4. Sukh Ram respondent addressed a petition to the Executive Magistrate, Baroh, District Kangra, H.P. This was on the subject "Holding inquiry and for taking appropriate action". As per averments made in this petition, he claimed that land detailed in paragraph-1 thereof was his Lal Lakeer Abadi. All the respondents i.e. Ghataroo Ram petitioner and respondents 2 to 5 in the present petition were alleged to be head strong people and had tried take possession of the said land forcibly. They have out the trees from the land in question and have already caused loss to the respondent to the tune of Rs.20,000/-. According to him all the accused (respondents) threatened him (Sukh Ram) that in case he stepped in the land, he would be done to death. He further claimed that all the accused came to beat him and evidence is available at the spot. Sukh Ram claimed to be in possession of this land since generations. In this background, he prayed for taking immediate legal action against Ghataroo Ram as well as respondents 2 to 5. This matter seems to have been dealt with by the Executive Magistrate in his capacity as Tehsildar, Baroh. This petition is dated 28th August, 1997 and the first endorsement made on it by the Tehsildar shows that it was fixed on 2nd September, 1997. After holding inquiry, he passed an order on 7th November, 1997. Operative portion of this order is as under:- "So, my finding in this complain filed in this court is that applicant was right in his application. He was in possession of Khasra No.339. His old house was there though he has constructed a new house in his own land to them. Marks of old house of Sukh Ram are still visible. He was in possession of Khasra No.339. His old house was there though he has constructed a new house in his own land to them. Marks of old house of Sukh Ram are still visible. Moreover, all the villagers also admitted this fact that old house. Shri Sukh Rams house was situated in that disputed land and he is cultivating crops in land after he constructed new house and shifted to new one. Hence action of Shri Ghataru Ram and his party occupying land forcibly harvesting and cutting crops forcibly in that land is actually in possession of Sukh Ram is illegal." 5. In the ordinary course of things, he ought to have proceeded in the matter after having come to the conclusion that coming into possession of Ghataru Ram and others was illegal. However, he left the matter there only. In my considered view, grievance, if any, should have been to Sukh Ram because Tehsildar as Executive Magistrate having not proceeded in accordance with law. 6. Instead of his making any grievance it was the petitioner and respondents 2to 5 preferring the revision petition before the learned Sessions Judge below. The same has been dismissed. What was held and is relevant is as under:- "Application of the respondent was entertained by the Revenue Officer as Tehsildar, who issued notice, recorded the statements and as per the order sheet, he has mentioned his designation also as Assistant Collector 1st Grade or Tehsildar. Even in the final order, passed on 7.11.1997, the learned trial court has mentioned its designation as Tehsildar and Assistant Collector 1st grade. There is nothing to suggest that any order was passed by the trial court as Executive Magistrate, or this order was passed under Section 145 Cr.P.C. Once the order was passed by the trial court as Tehsildar/ A.C. 1st grade, the revision petition does not lie to this court, but it lies to the authorities as provided under the Revenue Act. Therefore, the revision petition is liable to be dismissed. The point is answered accordingly." 7. At the time of hearing, learned counsel for the parties stated that Tehsildar, Baroh exercises the powers of Executive Magistrate also. 8. It is in this background that the present petition has been filed by Ghataru Ram and his associate are arrayed as proforma respondents 2 to 5 in the present case. The point is answered accordingly." 7. At the time of hearing, learned counsel for the parties stated that Tehsildar, Baroh exercises the powers of Executive Magistrate also. 8. It is in this background that the present petition has been filed by Ghataru Ram and his associate are arrayed as proforma respondents 2 to 5 in the present case. Before hearing could commence, learned counsel for respondent No. 1 has raised a plea that under the guise of present petition, the petitioner wantsto avail second revision which under Section 397(3) Cr.P.C. is incompetent at the instance of the petitioner as only one prayed for dismissal of this petition. Ordinarily this plea should have found favour with the court. However, for the reasons to be recorded hereinafter, it is felt that both in exercise of powers of superintendence and control vested in this Court with a view to keep the learned revisional court with in the bounds | of its limits under Article 227 of the Constitution of India and also to secure I the ends of justice under Section 482 Cr.P.C., this petition is being entertained and is also being disposed of accordingly. 9. A perusal of the complaint and follow up action including the final order passed (Operative portion whereof is extracted) shows that the Tehsildar was satisfied that the action of Ghataru Ram and his party having occupied the land forcibly which was actually in possession of Sukh Ram, was illegal. He did not allow the law to take its course and closed the file thereafter. Had he applied his mind in accordance with law after taking into account the provisions of the Code of Criminal Procedure as well as other laws governing the same, probably both the parties would have been saved of further litigation. 10. Strangely enough complaint was addressed by the petitioner to Executive Magistrate, Baroh. It seems that without caring to go through the same, he just dealt with it as Tehsifdar/Assistant Collector, 1st Grade. In the face of this position, this is a case of gross high handedness on the part of the Tehsildar who did not proceed according to law. 11. Strangely enough complaint was addressed by the petitioner to Executive Magistrate, Baroh. It seems that without caring to go through the same, he just dealt with it as Tehsifdar/Assistant Collector, 1st Grade. In the face of this position, this is a case of gross high handedness on the part of the Tehsildar who did not proceed according to law. 11. The matter did not rest here, reason being that the learned Sessions Judge below committed the same mistake without examining the order of the Tehsildar in its right and legal perspective by holding that since the order has been passed in his capacity as Tehsildar/Assistant Collector, 1st Grade, therefore, the revision was dismissed. 12. As an upshot of the above discussion, this petition is allowed and the order passed by the learned Sessions Judge is quashed and set aside. At the same time, it is ordered that Tehsildar, Baroh exercising the powers of Executive Magistrate will deal with the matter from that stage, i.e. after he passed the order dated 7th November, 1997 in case No.5 of 1997 with utmost despatch and expedition and decide the application of the petitioner in accordance with law and in no case later than 31st December, 2001. In case parties do not cooperate, the Executive Magistrate will be well within his authority to proceed against such party strictly in accordance with law. Record of the trial court be remitted forthwith so as to reach the court of Tehsildar-cum-Executive Magistrate, Baroh before 29th September, 2001 when the parties shall appear before the said court.