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2007 DIGILAW 144 (JHR)

RAMJEE SINGH v. STATE OF JHARKHAND

2007-03-02

D.G.R.PATNAIK

body2007
Judgment : ( 1 ) THE petitioner has invoked the inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashing the order dated 11-12-2006 passed by the learned Sub Divisional magistrate, Dhalbhum in Misc. Case No. 734 of 2004 whereby a receiver was appointed under the provisions of Section 146 Cr. P. C. with respect to the disputed premises. It is contended that the impugned order is totally illegal and against the materials on record and without application of judicial mind and is fit to be quashed. ( 2 ) THE facts of the case in brief is that on the basis of an application filed by the opposite party No. 2 before the learned Sub divisional Magistrate, the learned Magistrate initiated proceeding under Section 144 cr. P. C. in Misc. Case No. 734 of 2004 against the present petitioner as second party. The opposite party No. 2 as the first party had claimed possession over the disputed premises described by him as the premises of swami Satyanand Saraswati Ashram under plot Nos. 661 and 662 within JNAC ward no. 15 situated at Namda Basti, P. S. Golmuri, district Jamshedpur and claiming himself to be the vice president of the ashram, had contended that the premises was under the exclusive possession of the ashram. The petitioner in response to the notice issued to him under the proceeding, had appeared and contested the claim of the opposite party No. 2 stating that as a matter of fact, on the aforesaid plot Nos. 661 and 662 measuring total area of 5 acres, the petitioner had started the school as its founder member under the name of Ramjee Singh vidya Niketan on 1st January 1979 and in a portion of the land in plot Nos. 661 and 662, an ashram under the name of Swami satyanand Sarswati Ashram, was also started in the year 1983 of which the petitioner himself was the working president. The petitioner has claimed that 5 acres of the land under khata No. 341 corresponding to new khata No. 5, old plot No. 2772 corresponding to new plot Nos. 661 and 662, an ashram under the name of Swami satyanand Sarswati Ashram, was also started in the year 1983 of which the petitioner himself was the working president. The petitioner has claimed that 5 acres of the land under khata No. 341 corresponding to new khata No. 5, old plot No. 2772 corresponding to new plot Nos. 661 and 662, was in his possession and he had donated the same for the construction of the school and though the land was originally recorded as lease land of M/s. TISCO Limited, the petitioner had remained in possession of the land in question for the past more than ten years. The school was established with the cooperation of the people of the locality and since its inception, it was running smoothly. Entry in the survey record of rights published in the year 1996, depicts possession of the school and club over the lands in plot nos. 662 and 661 respectively, has been shown since 1974 and the area of lands locating the school and ashram has been shown separately in the aforesaid revenue records. The petitioner had claimed that the opposite party No. 2 along with his associates, had formed Brahmarshri Vikas Manch in the year 2002 and began to lay covetous eyes on the lands of the ashram and the school and had forcibly attempted to intrude into the school and ashram which was resisted by the people of the locality and consequently, a proceeding under Section 107 cr. P. C. was initiated in the year 2002. Soon thereafter, a portion of the school premises was set on fire by mischievous elements, against which a criminal case for the offence under Section 436 IPC was registered at the police station against certain named accused. The proceeding which was initially commenced under Section 144 Cr. P. C. vide misc. Case No. 734 of 2004, was converted into a proceeding under Section 145 Cr PC and on the application filed by the opposite party No. 2, the learned Magistrate passed an order on 14-6-2005 attaching the school premises and appointing a receiver, under section 146 (1) Cr. P. C. vide misc. Case No. 734 of 2004, was converted into a proceeding under Section 145 Cr PC and on the application filed by the opposite party No. 2, the learned Magistrate passed an order on 14-6-2005 attaching the school premises and appointing a receiver, under section 146 (1) Cr. P. C. Being aggrieved, the petitioner had filed revision application before the Sessions Judge challenging the order of attachment and appointment of receiver on the ground that the learned Magistrate had earlier called for a report both from the revenue clerk as also from the police and despite specific statement in the reports submitted by both agencies aboutexistence of the school being in possession of the petitioner, the learned Magistrate without application of judicial mind, had passed the order of attachment. The criminal revision application vide Cr. Revision No. 109 of 2005 was however dismissed by the additional Sessions Judge vide his order dated 11-11-2005 which prompted the petitioner to file Cr. Misc. Application No. 32 of 2006 before this Court challenging the order passed both by the learned Sub divisional Magistrate and also the order of the revisional Court. During the pendency of the aforesaid criminal miscellaneous No. 32 of 2006, vide order dated 18-5-06, this Court directed that the furniture seized from the school be returned/restored to the school and ashram and the school and ashram be opened for the students studying there with a condition that respective parties shall ensure maintenance of peace and tranquillity until final disposal of the proceeding under section 145 Cr. P. C. The circle officer, who was the appointed receiver and was made party respondent in the aforesaid misc. proceeding, in his counter-affidavit, had categorically stated about the existence of the school in the disputed land and also affirmed the fact that the school was in possession of the petitioner. Pursuant to the aforesaid order dated 18-5-2006 passed by this Court and corresponding direction issued by the sub Divisional Magistrate to the circle officer/receiver to hand over the possession of the school to the petitioner after removing locks from there, a written memorandum in confirmation of the restoration of the possession to the petitioner was executed by the circle officer in presence of the officer-in-charge of the concerned police station. In his counter-affidavit, the circle officer had acknowledged that pursuant to the order of attachment being vacated by the order of this Court, he had handed over the possession of the school to the petitioner. Consequent upon restoration of possession of the school premises along with its furniture, the petitioner withdrew the Misc. Case no. 32 of 2006, as filed by him, with the permission of the Court on 12-10-2006. Permission for withdrawal was granted though with an observation that the proceeding under Section 145 Cr. P. C. shall continue. It was during the pendency of the proceeding that the opposite party No. 2 filed yet another application before the learned Sub Divisional magistrate praying again for appointment of receiver in respect of the disputed premises and despite vehement objection of the petitioner, the learned Sub divisional Magistrate by his order dated 11-12-2006, had appointed Sri Niraj Kumari, executive Magistrate, as receiver over the property and land in dispute. Pursuant to her appointment, the Receiver again seized the possession of the school premises from the petitioner by commanding him to deliver the keys of the school to her. ( 3 ) HAVING detailed the facts, learned counsel for the petitioner submits that the impugned orders are thoroughly illegal and contrary to the provisions of Section 146 (1)Cr. P. C. It is contended by the learned counsel that while recording order of appointment of receiver and directing attachment of the property involved in the dispute, the learned Magistrate did not apply his judicial mind at all to consider as to whether there was circumstances existing and sufficient enough to warrant immediate attachment of the property and also failed to consider that by an order of the High Court, the possession of the property, which was earlier attached, was delivered to the petitioner and since after the delivery, the petitioner was in peaceful possession of the property. Learned counsel adds that the learned Sub divisional Magistrate has also failed to consider the fact which was even acknowledged by the revenue clerk and the police officer and also by the circle officer who was earlier appointed as Receiver, in their respective reports, that the school under the name of Ramjee Singh Vidya Niketan was very much in existence on disputed plot and the same was in possession of the petitioner. 3a. 3a. It is against the aforementioned second order of attachment, as passed by the learned Sub Divisional Magistrate on 11-12-2006 and the taking of the possession by the second receiver on 10-1-2007 that the petitioner has filed the instant application. ( 4 ) IN response to the notice, opposite party No. 2 has appeared through his lawyer and has filed his counter-affidavit refuting the entire submission advanced by the petitioner. Mr. P. P. M. Roy, learned counsel appearing for the opposite party No. 2 submits that earlier order dated 18-5-2006 passed by this Court in Cr. Misc. No. 32 of 2006 was in respect of an interlocutory application No. 724 of 2006 filed by the petitioner who had managed to obtain an interim order behind the back of the opposite party No. 2 and on being informed about the order, the opposit party No. 2 had filed an interlocutory application No. 1008 of 2006 praying for the stay of the interim order dated 18-5-2006 and after hearing the opposite party No. 2, this Court was pleased to dispose of the interlocutory application no. 1008 of 2006, by modifying the earlier order dated 18-5-2006 to the extent that the order dated 18-5-2006 be complied with "if there is existence of the school over the disputed plot in which proceeding under Section 145 Cr PC is going on". Learned counsel adds that despite the condition as laid down by this Court, in the modified order, the learned Sub Divisional Magistrate proceeded to comply with the earlier order dated 18-5-2006 passed by this Court without first ascertaining as to whether or not any school exists on the disputed plot and by his order dated 19-7-2006, had wrongly directed the circle officer to restore possession of the constructed building to the petitioner. Learned counsel adds further that though Cr. Misc. No. 32 of 2006 was filed by the petitioner against the earlier order of the Sub Divisional magistrate whereby a receiver was appointed after attachment of the property and also against the order passed by the revisional Court upholding the validity of the order of the Sub Divisional Magistrate, the petitioner had withdrawn the Cr. Misc. petition on 12-10-2006 meaning thereby that both the orders earlier impugned, were allowed to continue. Misc. petition on 12-10-2006 meaning thereby that both the orders earlier impugned, were allowed to continue. While allowing the prayer for withdrawal, this Court vide its order dated 12-10-2006 had observed that the "orders passed by the Court on 18-5-2006 and 29-6-2006 shall be of no effect in view of the withdrawal of the quashing petition without prejudice to the contesting pa paties". Learned counsel explains that thus, the earlier orders dated 18-5-2006 and 29-6-2006, by which order of attachment was vacated by this Court, shall have no effect in view of thewithdrawal of the quashing petition and the said orders would not bear any prejudice to the contesting parties, learned counsel explains further that under such changed circumstances, the original order passed by the Sub Divisional Magistrate by which a receiver was appointed after attachment of the property, will be deemed to have been restored and the subsequent order of the learned Sub Divisional magistrate which has been challenged by the petitioner in this application, cannot be considered as a fresh order of attachment. At best, the order amounts to appointment of another receiver in place of the earlier. Learned counsel adds further that in view of the rival claims of the both the parties over possession of the disputed lands and in view of the fact that there is apprehension of breach of peace relating to the said possession, the learned Magistrate was competent enough to pass the order of attachment and to appoint receiver for attaching the property till the disposal of the proceeding under Section 145 Cr. P. C. and in this view of the matter, the impugned orders do not suffer from any illegality whatsoever and do not call for any interference by this Court in exercise of its inherent powers. ( 5 ) THE question which calls for determination is whether the impugned order dated 11-12-2006 passed by the learned Sub Divisional magistrate purported to be in exercise of powers under Section 146 (1) Cr. P. C. , and whether the action of the learned Executive magistrate, who was appointed as a receiver, directing the petitioner on 10-1-2007 to hand over the locks of the school and deliver the possession of the school and ashram, is illegal and calls for intervention of this Court in exercise of its Inherent powers. P. C. , and whether the action of the learned Executive magistrate, who was appointed as a receiver, directing the petitioner on 10-1-2007 to hand over the locks of the school and deliver the possession of the school and ashram, is illegal and calls for intervention of this Court in exercise of its Inherent powers. ( 6 ) REFERRING once again to the facts admitted by both the parties relating to the background of the case, it appears that the petitioner had challenged the earlier order of attachment passed by the learned Sub divisional Magistrate and vide interim order dated 18-5-2006 passed by this Court, the order of attachment was vacated and pursuant to the order, possession of the school premises were restored to the petitioner. Confirmation of the restoration of possession, was made by the receiver in his counter-affidavit who had also confirmed the existence of the school within the disputed premises. It would be deemed therefore that the earlier order of attachment as passed by the learned Sub Divisional Magistrate, was vacated, though proceeding under section 145 Cr. P. C. was allowed to continue. Under such circumstances, a fresh order appointing receiver for the attachment of the disputed premises could be passed only in accordance with the provisions of sub-section (1)of Section 146 Cr, P. C. Section which reads as follows: "146. Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the code of Civil Procedure, 1908 (5 of 1908): provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate - (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just. " ( 7 ) IT is apparent that the condition precedent for attachment of the disputed property and appointment of a receiver is the existence of a situation of emergency necessitating attachment to prevent breach of peace and the Court passing the order should record its satisfaction that there exists an emergency, which requires attachment of the property. The case of emergency contemplated under Section 146 Cr. P. C. has to be distinguished from a case of apprehension of breach of peace. To infer a situation of emergency, there must be some material before the Magistrate on the record from the submission of the parties, documents produced or evidence adduced and not upon the personal impression of the Magistrate. Such circumstance may be inferred from the report submitted by any independent agency like the police. ( 8 ) IN the instant case, the impugned order dated 11 -12-2006 passed by the learned magistrate does not record any such circumstance regarding the existence of any emergency. Rather, the order as it appears was passed merely on the prayer by the opposite party No. 2 making aspersion and imputation against the conduct of the earlier appointed receiver and on being persuaded to believe that the earlier order of attachment remained sustained even by the Sessions Court in the revision application preferred by the petitioner and by the withdrawal of criminal miscellaneous application filed by the petitioner before this Court. Certainly, the impugned order does not appear to have been passed by the learned Magistrate on proper application of judicial mind since the learned Magistrate appears to have failed to consider that the earlier order of attachment passed by him, was virtually vacated by the order of this Court passed in cr. Misc. petition No. 32 of 2006. The order of the learned Sub Divisional Magistrate is certainly illegal and perpetrates injustice since it is an abuse of the process of the court. ( 9 ) IN the light of the above discussion, I find merit in this application and the same is allowed. The impugned order dated 11-12-2006, as passed by the learned Sub Divisional Magistrate in Misc. Case No. 734 of 2004 and the order of the learned Executive magistrate/receiver dated 10-1-2007 whereby the property in dispute was attached, is hereby set aside. It is directed hereby that the possession of the disputed premises be handed over to the petitioner forthwith. The learned Sub Divisional Magistrate shall expedite and conclude the proceeding under Section 145 Cr. P. C. pending before him without any further delay. Meanwhile, both the parties are directed to maintain peace and tranquility. Be it mentioned that the restoration of the possession of the disputed premises to the petitioner at this stage, will not prejudice the right or claim of either parties to the proceeding which is subject to final adjudication by the learned magistrate in the proceeding under Section 145 Cr. P. C. Application allowed. --- *** --- .