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2003 DIGILAW 19 (JK)

Gopi Chand v. Mohd. Hanief

2003-02-24

B.L.BHAT

body2003
ORAL: 1. By virtue of this referrence order, the learned Sessions Judge Udhampur has recommended setting aside of the impugned order recorded by the learned Additional District Magistrate, Udhampur dated 17-07-2002 in proceedings under section 145 titled as Mohd. Hanief and another Vs. Ram Singh and Others. 2. It appears that an application under section 145 Cr.P.C. came to be presented before the learned Additional District Magistrate, Udhampur by Mohd. Hanief the respondent herein with the prayer for initiation of proceedings under section 145 Cr.P.C. stating therein that land measuring about 7 kanals comprising of survey No. 63 and land measuring about 4 kanals comprising of survey No. 64 located at village Kanjili tehsil Reasi purchased by him by an oral sale Deed against consideration amount of Rs 50,000/-. That he is in possession of the said land from the year 1989. However, the respondents without any right whatsoever with respect to this land are bent upon to take forcible possession of this land as a result of which there is apprehension of breach of peace prevalent on spot on presentation of this petition, the learned Magistrate came to be record the statement of the respondent herein and of his two witnesses, came to record the satisfaction about the breach of peace with respect the land in question and came to pass an order of attachment of this land with the direction that the same be placed on the superdnama of third person with the direction to maintain the account of its crop. Section 145(1) Cr.P.C.. provides : 145. Procedure where dispute concerning land, etc. Section 145(1) Cr.P.C.. provides : 145. Procedure where dispute concerning land, etc. is likely to cause breach of peace- (1) when ever a (Chief Judicial Magistarte, or any other Judicial Magistrate of the first class) is satisfied from a police report or other information that a dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. Provided that the dispute likely to cause a breach of peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1976, the powers under this section shall be exerciseable only by the District Magistrate or an Executive Magistrate of the first class.� 3. From the reading of the aforesaid section it is abandantly clear that before a preliminary order for initiation of proceedings under section 145 Cr.P.C., the Magistrate is under a legal obligation to draw a preliminary order, which should contain : (a) a statement that the Magistrate is satisfied as to the existence of a dispute likely to cause breach of peace concerning the possession of any land, water or boundaries thereof within his local jurisdiction; (b) the grounds of his being so satisfied; (c) the correct description of the property in respect of which the proceedings are instituted; (d) the parties concerning such dispute and (e) a direction requiring the parties or either of them to attend the court on a particular date and put in written statement in respect of the factum of actual possession of the disputed property, land or water or boundaries thereof whatever the case may be and further requiring them to produce documents in support of their claims and to adduce evidence by producing the affidavits of such persons as they rely in support of their respective claims. This order, the Magistrate is required to make in writing for testing its correctness. 4. From the persual of the impugned order, it is manifes that it does not demonstrate that the learned Magistrate has recorded the grounds of his satisfaction to the effect that there is any dispute with respect to the land in question which may likely cause breach of peace. Mere referrence of the statement of the application that there is breach of peace on spot with respect to the disputed land cannot be said a ground for recording his subjective satisfaction with respect to the said facts as to whether actually there is dispute with respect the land in question likely to cause breach of peace. Secondly the learned Magistrate without issuance of direction by way of notice to the parties requiring them to attend the court on a particular date and to file their written statement in respect of the factum of possession of the disputed property and to produce the documents in support of their claims and to adduce evidence by producing evidence of such person as they rely in support of their claims which is mandatory requirement of section has proceeded to attach the property. This being so, the proceedings before the learned Magistrate Udhampur are without preliminary order as contemplated under law, as a result of which the entire proceedings are liable be vitiated. It is also manifest that the laerned Magistrate has failed to comply with the sub-section 3 of section 145 Cr.P.C. which is mandatory in character requiring publication and affixing of notice at or near place of dispute for inviting objections from all interested persons besides the parties to the dispute and also to inform the grounds on which proceedings are initiated. 5. Therefore, in view of afore discussion the referrence is accepted and the proceedings under section 145 Cr.P.C. pending before the learned Additional District Magistrate, Udhampur are hereby quashed. Record be returned together with a copy of this order with the direction to the Enquiry Magistrate to proceed a fresh in the matter.