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2005 DIGILAW 409 (ORI)

Raghunath Sahoo v. Niranjan Sahoo

2005-07-01

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : This is an application under Section 482, Cr.P.C. for quashing the orders dated 17.11.2004 and 13.12.2004 under Annexures-1 and 10 respectively, passed by the Executive Magistrate, Niali in Criminal Misc. Case No.181 of 2004 initiating a proceeding under Section 145, Cr.P.C. restraining the petitioners and opposite parties from entering into the dis¬puted land and appointing the Revenue Inspector, Sadar, Niali as receiver in respect of the crops standing on the disputed land. 2. The Officer-in-charge, Niali Police Station submitted a report that the opposite party No.1 first party in one hand and the petitioners and opp.parties 2 to 5 on the other are trying to reap the paddy crops standing on plot Nos.3203, 3210, 3211, 3214, 3215, 3258, 3259, 3260, 3291 and 440 of Khata No. 105 of mouza-Tolagopinathpur under Niali Police Station creating a volatile situation. In the report he suggested that in order to avid clash between the parties and to avoid any breach of peace in the locality a proceeding under Section 145, Cr.P.C. be initiated. Considering the aforesaid report of the O.I.C., Niali Police Station and the surrounding circumstances, the Executive Magis¬trate, Niali vide order dated 17.11.2004 drew up a proceeding under Section 145, Cr.P.C. and restrained the parties from enter¬ing into the disputed land until further orders. Further, in order to protect the standing crops over the disputed land, he appointed the Revenue Inspector, Sadar, Niali as receiver and directed him to harvest the standing crops and to meet the ex¬penses of such harvest from the sale proceeds of the harvested crops. Aggrieved, the petitioner has filed the present petition to quash the above said orders of the learned Executive Magis¬trate. 3. The claim of the 1st party opposite party No.1 is that he is all along in possession of the disputed land and he had raised the crops in that land in the year, 2004. According to opposite party No.1 the sale deed basing on which the petitioner and opposite party Nos.2 to 5 are claiming title over the disput¬ed land is a fake and invalid one and convey no right, title to the petitioner and opposite party Nos.2 to 5. 4. According to opposite party No.1 the sale deed basing on which the petitioner and opposite party Nos.2 to 5 are claiming title over the disput¬ed land is a fake and invalid one and convey no right, title to the petitioner and opposite party Nos.2 to 5. 4. The plea of the 2nd party members is that the disputed land was purchased by them in the year 1982 and they are in pos¬session of the same ever since and accordingly, R.O.R. has also been prepared in their names for the disputed land. It was also claimed by the 2nd party members that Civil Suit is pending between the parties for the disputed land and in that suit the prayer for injunction of the 1st party-opp.party has been reject¬ed by the Court and so a proceeding under Section 145, Cr.P.C. cannot be initiated and the order of attachment of the crops standing thereon cannot be passed. 5. Mr. A. R. Dash, learned counsel for the petitioners submitted that during pendency of the civil suit between the parties for the disputed land, initiation of the proceeding under Section 145, Cr.P.C. is barred under the law. He cited the case of S. Prabhjeet Singh Johar v. Harjeet Singh and others, 2002(9) SBR 232 in support of his contention. 6. Repudiating the aforesaid submission of the learned counsel for the petitioners, Mr. G.C. Das, learned counsel ap¬pearing for opposite party No.1 submitted that there is no legal bar for initiation of a proceeding under Section 145, Cr.P.C. simply because civil suit for the disputed property is pending between the parties. According to him, if civil Court has not appointed any receiver or has not passed any order of injunction, then the Executive Magistrate can initiate a proceeding under Section 145, Cr.P.C., as otherwise there would be a vacuum and peace and tranquillity will be disturbed. In support of his con¬tention, he relied on the case of Mando Kumbharuni v. Dutia Rana and others, 69(1990) C.L.T. 274, Prakash Chand Sachdeva v. The State and another, AIR 1994 Supreme Court 1436 and Charan Naik and others v. Kirtan Mohanty, 87 (1999) C.L.T. 425. 7. In support of his con¬tention, he relied on the case of Mando Kumbharuni v. Dutia Rana and others, 69(1990) C.L.T. 274, Prakash Chand Sachdeva v. The State and another, AIR 1994 Supreme Court 1436 and Charan Naik and others v. Kirtan Mohanty, 87 (1999) C.L.T. 425. 7. From the rival submissions of the learned counsel for the parties, the point which emerges for consideration is whether an Executive Magistrate is legally competent to draw up a pro¬ceeding under Section 145, Cr.P.C. over the disputed land when civil suit is pending between the parties for the same land and whether in that situation any receiver can be appointed for pro¬tection of the land and the standing crops. 8. In the case of S. Prabhjeet Singh Johar (supra) the respondents had filed a civil suit for injunction regarding the property in question and the Court had granted ad interim order of injunction. In appeal, the injunction order was modified to an order of status quo. Then the High Court quashed the proceed¬ing under Section 145, Cr.P.C. holding that the proceeding during pendency of the civil suit between the parties, in which the question of possession was involved was abuse of the process of the Court. The said order was challenged before the apex Court. The apex Court took the view that when the parties are before the civil Court in a suit in which the question of possession is directly involved and there was order of the civil Court to main¬tain status quo over the disputed property, there was no scope for the Magistrate to initiate a proceeding under Section 145, Cr.P.C. 9. In the case of Mando Kumbharuni (supra), one of the parties claimed exclusive possession over the disputed land while the other party claimed joint possession. The Executive Magis¬trate, initiated proceeding under Section 145, Cr.P.C. over the land in question as the apprehended clash between the parties for possession of the land. The said order was challenged before this Court and this Court held that even if the opposite parties claim joint possession, the proceeding under Section 145, Cr.P.C. is maintainable if there was apprehension of breach of peace. 10. In the case of Prakash Chand Sachdeva (supra), a father claimed that he was occupation of a separate portion of an ances¬tral house of which he himself and his son were co-owners, but dispossessed by his son. 10. In the case of Prakash Chand Sachdeva (supra), a father claimed that he was occupation of a separate portion of an ances¬tral house of which he himself and his son were co-owners, but dispossessed by his son. Consequently, the proceedings under Sections 107 and 145, Cr.P.C. were initiate and civil suit for injunction was also filed. The apex Court held that the pro¬ceeding under Section 145, Cr.P.C. cannot be dropped on the ground of pendency of civil suit, particularly when there is no dispute about title. It was specifically held that when the claim of title is not in dispute and the parties on their own showing are co-owners and there is no partition, one cannot be permitted to act forcibly and unlawfully and ask the other to act in ac¬cordance with law and so, where the dispute is not on right to possession, but on the question of possession, the Magistrate is empowered to take cognizance under Section 145, Cr.P.C. 11. In the case of Charan Naik (supra), the short point which came up for consideration was whether a proceeding under Section 145, Cr.P.C. and the order of attachment under Section 146, Cr.P.C. are maintainable during pendency of a civil suit between the parties. After closely analysing the ratio laid down in various cases by the apex Court and this Court, it was held that pendency of a civil suit between the parties in the disputed land does not ipso facto oust the jurisdiction of the Executive Magistrate to initiate a proceeding under Section 145, Cr.P.C. It was held that when no interim order has been passed by the civil Court to protect the properties from scramble for possession and there is chance of clash between the parties, the Executive Magistrate would be legally competent to initiate a proceeding under Section 145, Cr.P.C. and appoint a receiver under Section 146, Cr.P.C. 12. The above noted judicial pronouncement thus shows that a Magistrate is not precluded from initiating a proceeding under Section 145, Cr.P.C. simply because civil suit is pending between the parties for the disputed land. The above noted judicial pronouncement thus shows that a Magistrate is not precluded from initiating a proceeding under Section 145, Cr.P.C. simply because civil suit is pending between the parties for the disputed land. If the Civil Court has not made any interim arrangement for the preservation or protection of the disputed property or for preventing breach of peace which is likely to arise for the possession of the disputed land, then the Magistrate can initiate a proceeding under Section 145, Cr.P.C. and can appoint receiver for the proper preservation of the property or the crops standing thereon. 13. In the present case, admittedly, civil suit is pending between the parties for right, title and possession of the dis¬puted land. But no order of injunction or appointment of receiver for the disputed land has been passed. In fact the prayer for injunction of opposite party No.-first party has been rejected by the Civil Court. Thereafter, the O.I.C., Niali Police Station has submitted a report that each of the parties is trying to cut and remove the standing crops from the disputed land and there is every chance of clash between them and the Executive Magistrate drew the proceeding under Section 145, Cr.P.C. and appointed the R.I. as receiver for the standing crops. When no arrangement had been made by the civil Court for the crops on the disputed land and when there is scramble for possession of the said land be¬tween the parties, the learned Magistrate was legally competent to draw a proceeding under Section 145, Cr.P.C. Moreover, the wordings of Section 145(1), Cr.P.C. clearly give power to the Executive Magistrate to draw a proceeding requiring the parties concerned to appear, put in written statement of their respective claims in respect of the fact of actual possession and the sub¬ject matter of dispute. Section 148(8), Cr.P.C. further empowers the Magistrate to make an order for proper custody or sale of the standing crop or other products of the disputed land. When the Civil Court had not made any interim arrangement for the disputed property and when there was scramble for possession of the land giving rise to law and order problem, learned Magistrate was legally justified in passing the impugned orders under Annexures 1 to 10. 14. In the above noted situation, the CRLMC is found to be without any merit and accordingly dismissed. CRLMC dismissed.