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2004 DIGILAW 237 (HP)

SITA RAM v. EXECUTIVE ENGINEER, CPWD

2004-09-23

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.: This petition under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India is directed against the order dated 23.6.2004 passed by the learned Additional Sessions Judge (Fast Track Court), Shimla whereby the revision petition preferred by the petitioner against the order dated 15.3.2003 passed by the Sub Divisional Magistrate (Urban), Shimla ordering filing of the application of the petitioner under Section 145 of] the Code of Criminal Procedure (hereinafter referred to as the Code) vide order dated 15.3.2003 has been dismissed. 2. Brief facts leading to the filing of the present petition are that the petitioner filed an application under Section 145 of the Code before the learned Sub Divisional Magistrate (Urban), Shimla averring therein that he had been in settled possession of Quarter No. 37, Type-I, CPWD Quarters, Longwood for the last 16-17 years but had been forcibly dispossessed from the said quarter by Junior Engineer on 9.1.2003 and that the dispossession was without due process of law. It is also averred that at the time of taking of forcible possession the petitioner was threatened with dire consequences. He had gone to the police to get a report lodged but the same was not registered instead he was threatened to be arrested for the commission of offence punishable under Sections 448, 453 and 457 IPC and he had to apply for anticipatory bail. Hence, the application. 3. The learned Sub Divisional Magistrate sent the application to S.H.O. concerned for report. As per the police report, the application filed by the petitioner was found baseless. On perusal of the report the learned Sub Divisional Magistrate ordered the application to be filed. 4. Aggrieved by the order, the petitioner preferred a revision petition which was dismissed by the learned Additional Sessions Judge. Hence, this application. 5. I have heard the learned Counsel for the parties and have also gone through the records. 6. A perusal of the application filed by the petitioner reveals that there is no allegation that the alleged dispute is likely to cause breach of public peace. 7. The relevant part of the provisions of Section 145 of the Code reads as follows:- "145. Procedure where dispute concerning land or water is likely to cause breach of peace. 6. A perusal of the application filed by the petitioner reveals that there is no allegation that the alleged dispute is likely to cause breach of public peace. 7. The relevant part of the provisions of Section 145 of the Code reads as follows:- "145. Procedure where dispute concerning land or water is likely to cause breach of peace. - (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water pr the boundaries thereof, within his local 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, on a specified date and time, and. to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the cents or profits of any such property." 8. It is evident on a bare reading of the aforesaid provisions that an Executive Magistrate can proceed to take action under Section 145 of the Code. Only in case he is satisfied from a report of the police officer or from other information that a dispute concerning any "land or water", (the expression which will include buildings, market fisheries etc.) exists and such dispute is likely to cause breach of peace. Thus, the provisions of Section 145 of the Code are meant to resolve a situation where there is likelihood of a breach of peace because of a dispute concerning any land, water or building or their boundaries and confers powers on the Executive Magistrate to intervene and pass temporary orders in the dispute between the parties regarding possession of the land etc. as the case may be. Thus, the provisions enable the Executive Magistrate to take preventive measure for maintaining peace. Its purpose is not to restore possession in a case of dispossession simplicitor wherein there is no endanger to the public peace and tranquility. 9. as the case may be. Thus, the provisions enable the Executive Magistrate to take preventive measure for maintaining peace. Its purpose is not to restore possession in a case of dispossession simplicitor wherein there is no endanger to the public peace and tranquility. 9. As already stated hereinabove, there is no allegation in the application made by the petitioner to the learned Sub Divisional Magistrate that there ever existed any likelihood of breach of peace because of any dispute qua the premises in question. Thus, evidently there was no basis for the concerned Executive Magistrate to proceed I with the application. After having received a report from the police that there was no likelihood or apprehension of breach of peace he rightly refused to take action on the application and the learned Additional Sessions Judge rightly dismissed the revision petition filed by the petitioner. Thus, the Courts below have not committed any illegality or material procedural irregularity while passing the impugned orders, therefore, the impugned orders do not call for any interference by this Court. 10. As a result, this petition is dismissed.