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2002 DIGILAW 380 (PNJ)

Balraj Singh v. Sewa Singh

2002-04-08

V.M.JAIN

body2002
Judgment V.M.Jain, J. 1. This is a petition under Section 482, Cr.P.C., filed by the petitioners seeking quashment of the orders dated 10.12.1998, copies Annexures P5 and P6, passed by SDM, Ajnala, initiating proceedings under Section 145, Cr.P.C., and ordering the attachment of the property under Section 146, Cr.P.C., and all subsequent proceedings, taken thereon. 2. The facts, which are relevant for the decision of the present petition are that SHO, Police Station, Lopoke, submitted a Calandra under Section 145, Cr.P.C., copy Annexure P4, impleading the present petitioners as party No. 1 and respondent No. 1, Sewa Singh, as party No. 2. It was alleged in the Calandra that an application was filed by the Gram Panchayat through its Sarpanch before the DSP, Ajnala, that the present petitioners had taken the Panchayat land on lease in the year 1993-94 and had retained the illegal possession of the land and that the DDPO had passed the orders in favour of the Panchayat and the BDPO had auctioned the land in favour of Sewa Singh for one year. It was alleged that both the parties were summoned to the Police Station and records were checked. It was alleged that both the parties were claiming their right over the land in dispute. It was further alleged that the dispute regarding possession of the land was already going on between the parties. It was further alleged that the land in question was Jumla Mushtarka Malkan of the Gram Panchayat. It was alleged that Calandra under Section 145 Cr.P.C., had been prepared and was being sent to the SDM, as there was dispute about the possession of the land and this dispute was likely to give rise to a cognizable offence. It was alleged that both the parties be restrained from taking possession over the said land, as both the parties were claiming their rights over this land. It was further alleged that since Wheat and Barseen crops had been sown over the land in dispute, a Receiver be appointed to look after the said land and necessary orders be also passed with regard to the standing crops. 3. On receipt of the aforesaid Calandra, the learned SDM passed order dated 10.12.1998, copy Annexure P5, initiating proceedings under Section 145, Cr.P.C., and issuing of notice to both the parties to appear before him. 3. On receipt of the aforesaid Calandra, the learned SDM passed order dated 10.12.1998, copy Annexure P5, initiating proceedings under Section 145, Cr.P.C., and issuing of notice to both the parties to appear before him. Side-by-side, the learned SDM also passed another order dated 10.12.1998, copy Annexure P6, ordering the attachment of the said land and directing the Tehsildar, Ajnala, to attach the said land by taking possession and to keep the possession with him, till a decree or order of the competent Court, determining the rights of the parties was passed. 4. In the proceedings under Section 145, Cr.P.C., the petitioners, being party No. 1, filed written reply, alleging therein that the land was owned by Jumla Mushtarka Malkan and that party No. 1 was in possession of the same as co-sharers for the last many years. It was further alleged that the possession of party No. 1 was confirmed by the civil Court vide judgment and decree dated 14.6.1996 and the Appeal filed by the Gram Panchayat was dismissed by the Additional District Judge, Amritsar on 10.6.1997. It was further alleged that in another suit, the Additional Civil Judge, Senior Division, Ajnala, vide order dated 27.7.1998, had granted permanent injunction against party No. 2 and party No. 2 had not filed any Appeal against the same. It was alleged that since the civil Court was already seized of the matter, the SDM had no jurisdiction to decide the factum of possession and to attach the land in dispute, at the instance of Police and political leaders. It was alleged that more than two months, prior to the initiation of the proceedings under Section 145, Cr.P.C., party No. 1 was in possession of the land in dispute and had sown wheat crop therein. It was accordingly prayed that proceedings under Section 145, Cr.P.C., be dropped and the land be released from attachment. 5. Since no action was taken by the SDM for dropping the proceedings under Section 145, Cr.P.C. and releasing the land from attachment, the present petitioners (party No. 1) filed the present petition under Section 482, Cr.P.C., seeking quashment of the orders passed by the SDM. 6. Vide order dated 28.1.1999, notice was ordered to be issued to the respondents and in the meantime, operation of the impugned orders was stayed. Subsequently, vide order dated 15.3.1999, while adjourning the case, status quo was ordered to be maintained. 6. Vide order dated 28.1.1999, notice was ordered to be issued to the respondents and in the meantime, operation of the impugned orders was stayed. Subsequently, vide order dated 15.3.1999, while adjourning the case, status quo was ordered to be maintained. 7. Even though the respondents had put in appearance in this petition, still no reply was filed. At the time of arguments, no one had in appearance on behalf of the contesting respondents. 8. I have heard learned counsel for the petitioners and gone through the record carefully. 9. Learned counsel for the petitioners submitted before me that the SDM had no jurisdiction to initiate proceedings under Section 145, Cr.P.C., especially when there was no dispute regarding the dispossession over the land in dispute. It was submitted that the civil Court had already found the petitioners to be in possession of the land in dispute as against Gram Panchayat and furthermore, in the subsequent suit, the civil Court had found that party No. 2 had been restrained from disposessing the petitioners from the land in dispute illegally and forcibly, during the pendency of the suit. It was submitted that the Calandra under Section 145, Cr.P.C., and the orders dated 10.12.1998, passed by the SDM, under Sections 145 and 146, Cr.P.C. be quashed. 10. I find considerable force in these submissions of the learned counsel for the petitioners. Annexure P1 is the copy of the judgment and decree dated 14.6.1996 in the civil suit filed by the petitioners against Gram Panchayat, concerning the land in question. As per the said judgment and decree, the suit of the petitioners for declaration with consequential relief of permanent injunction was decreed and it was held that the petitioners were in possession of the suit land as co-sharers. The said judgment and decree dated 14.6.1996, passed by the trial Court, were upheld in Appeal by the learned Additional District Judge, vide judgment dated 10.6.1997, copy Annexure P2, vide which the Appeal, filed by the Gram Panchayat was dismissed. Subsequently, the petitioners had filed another suit against respondent No. 1, Sewa Singh, seeking a decree for declaration and permanent injunction by way of consequential relief. Vide order dated 27.7.1998, copy Annexure P3, the trial Court had restrained Sewa Singh, defendant, from dispossessing the petitioners from the land in dispute illegally for forcibly, till the disposal of the suit. Subsequently, the petitioners had filed another suit against respondent No. 1, Sewa Singh, seeking a decree for declaration and permanent injunction by way of consequential relief. Vide order dated 27.7.1998, copy Annexure P3, the trial Court had restrained Sewa Singh, defendant, from dispossessing the petitioners from the land in dispute illegally for forcibly, till the disposal of the suit. It was during the pendency of the aforesaid suit that the SHO, Police Station, Lopoke, filed the Calandra under Section 145, Cr.P.C., in the Court of SDM, Ajnala, on 10.12.1998, copy Annexure P4, seeking the initiation of proceedings under Section 145, Cr.P.C. and attachment of the land under Section 146, Cr.P.C. The SDM, Ajnala, vide orders dated 10.12.1998, copies Annexures P5 and P6, initiated proceedings under Section 145, Cr.P.C. and also ordered attachment of the land, in question, and appointed a Receiver. 11. In my opinion, the entire proceedings, initiated by the SHO, in filing the Calandra and the proceedings, initiated by the SDM, under Section 145, Cr.P.C. and ordering attachment of the land under Section 146, Cr.P.C., are abuse of the process of Court and are liable to be quashed. Since the matter was already pending before the civil Court, in my opinion, the SDM had no jurisdiction to initiate proceedings under Sections 145/146, Cr.P.C., and there was absolutely no occasion either for initiating proceedings under Section 145, Cr.P.C., or to order attachment of the land under Section 146, Cr.P.C. 12. For the reasons recorded above, the present petition is allowed and the orders dated 10.12.1998, copies Annexures P5 and P6, passed by SDM, Ajnala, are hereby quashed, resultantly the Calandra initiated by the SHO, under Section 145, Cr.P.C. copy Annexure P4, is also quashed.