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2008 DIGILAW 1756 (RAJ)

Mool Chand v. State of Rajasthan

2008-07-23

S.P.PATHAK

body2008
JUDGMENT 1. - This criminal revision petition under Section 397 read with section 401 Cr.RC. has been filed against the order dated 02.06.2008 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Alwar passed in Criminal Revision Petition No. 39/2008 whereby the order passed by learned Sub Divisional Magistrate, Ramgarh dated 28.03.2008 has been set aside appointing receiver on the property in dispute. 2. Briefly stated the relevant facts, for the disposal of this revision petition, are that the SHO, Police Station, Ramgarh District-Alwar filed complaint on 13.12.2007 before the Sub Divisional Magistrate, Ramgarh, District Alwar under section 145 Cr.P.C. on behalf of Mool Chand son of Jaysiram Jangid stating therein that the land in dispute bearing khasra No. 445 measuring 0.53 hectares situated in village Khoh Tehsil Ramgarh and the complainants's son Pratap is having the half of the disputed land in his name. The respondent No. 2 along with others are not permitting the complainant's son to enter into the field and are trying to dispossess them. On 21.10.2007 when complainant's son went on his field alongwith labourers to take the crops, the respondents did not permit them and started quarreling with them and threatened to kill, therefore, there is likelihood of breach of peace and a order was required to be passed for the appointment of receiver. Learned Sub Divisional Magistrate issued notice to the respondent and the respondent filed reply to that notice and submitted that the complaint was not maintainable as the same was not filed by the complainant Mool Chand himself but was filed by one Pratap Singh who is in fact not the son of Mool Chand. It was also stated that civil disputes were pending between the parties and there was no likelihood of any breach of peace. It was also stated in the reply that interim order passed by this court is also in existence in relation to the disputed land because alleged probate is under challenge. The learned SDM after hearing both the sides and considering the evidence led before it passed an order under section 146(1) Cr.RC. after recording his satisfaction that there exist a dispute between the parties in relation to the land in dispute and there is apprehension of breach of peace and conditions are such requiring immediate action. An order dated 28.03.2008 appointing receiver was passed. after recording his satisfaction that there exist a dispute between the parties in relation to the land in dispute and there is apprehension of breach of peace and conditions are such requiring immediate action. An order dated 28.03.2008 appointing receiver was passed. The order impugned was challenged by the respondent in a revision petition which came to be decided on 02.06.2008 by the learned revisional Court. The learned revisional court found that no such emergency had existed for appointment of receiver. The learned revisional court further found that no criminal litigation was pending between the parties to draw conclusion that it was essential to appoint a receiver as there was no likelihood of breach of peace. This order passed in revision has been challenged before this Court. 3. The contention of the learned counsel for the petitioner is that half of the disputed land undoubtedly is in the possession of the petitioner and the respondent cannot be permitted to stop him from entering into the field. It is also contended that the primary satisfaction recorded for breach of peace by the learned SDM is based on the enquiry conducted by the SHO required no interference by the learned revisional court, therefore, the revisional court's order is required to be set aside and the order passed by the learned SDM requires to be restored. 4. On the other hand, it has been contended that the civil and criminal proceedings cannot continue together. It is also contended that in the instant case in fact that there is no claim on the disputed land of the petitioner on the basis of revenue record. It is also contended that since the complaint was not filed by Mool Chand, therefore, it was also not maintainable. It is contended that even the application moved before the SHO concerned prior to filing of this complaint by one Pratap Singh would indicate that the petitioner has admitted this aspect of the matter that the suit for division of property is pending. According to the learned counsel in such circumstances when a suit for division of property is pending, the proceedings under section 145 cannot be maintained. It is also contended that the petitioner has no locus what-so-ever on the disputed land. It is also contended that in view of the admitted position that before this court civil misc. According to the learned counsel in such circumstances when a suit for division of property is pending, the proceedings under section 145 cannot be maintained. It is also contended that the petitioner has no locus what-so-ever on the disputed land. It is also contended that in view of the admitted position that before this court civil misc. appeal is pending wherein interim order has been passed and that civil misc. appeal is in relation to probate which is concerning the present disputed property. The learned counsel further submitted that the position of law is also clear that unless it is established that there is apprehension of breach of peace and further apprehension is of such nature that immediate action in the matter is required to be taken in relation to land or water or boundaries thereof then in such circumstances, a proper order regarding appointment of receiver can be passed. In the last, it is contended that in the absence of material to show that if receiver is not appointed then some un-towards incident may take place and it is essential in the circumstances of the case to appoint a receiver then only an order under section 146(1) of the Cr.RC. could be passed. According to the learned counsel there is no material available worth the name on the file in this regard. Therefore, the revisional court has correctly set aside the order. 5. I have considered the submissions made before me and perused the impugned order under challenge and the material available on record. 6. In the instant case, the point which requires consideration is as to whether the order passed by the learned revisional court is legal, just and proper or not? 7. In view of the admitted position between the parties that in relation to the disputed property, civil disputes are pending, a civil misc. appeal challenging probate is also pending before this court. Even the complaint filed before the SHO also shows that the matter is pending for division of property in a court. Thus, there is no hesitation in coming to the conclusion that in relation to the disputed property, the disputes are pending between the parties in the court of law, therefore, parallel proceedings legally cannot be permitted to continue. Even the complaint filed before the SHO also shows that the matter is pending for division of property in a court. Thus, there is no hesitation in coming to the conclusion that in relation to the disputed property, the disputes are pending between the parties in the court of law, therefore, parallel proceedings legally cannot be permitted to continue. The learned revisional court found that the satisfaction of the learned SDM that there was apprehension of breach of peace was not well founded in the absence of the material. The revisional court has assigned reasons for its findings. This court also several times has repeatedly held that on existence of apprehension of breach of peace, it cannot be said that the state of emergency had existed. The term `emergency' means existence of factors or conditions which emerged calling for immediate action to attach the land and take it under control and the management of the court. The word emergency envisages a situation completely different from one when there is apprehension of breach of peace (kindly see Madan Lal and others v. State of Rajasthan & Others, 1999 WLC (Raj.) UC 693 , Hazari & Others v. Sheoji and others, 1995 Cr.L.R. (Raj.) 319 , Allanoor and Others v. State of Rajasthan & others, 1993 Cr.L.R. (Raj.) 480 and Geparam v. Ghevar-1988(1) RLW (Raj.) 177 . 8. In view of the settled position of law that the criminal and civil proceedings both cannot continue together, therefore, the order passed by the learned SDM was not legally sustainable. The revisional court, thus, has correctly recorded its satisfaction and finding further that the possession of the disputed land was of the respondent, therefore, I do not find any substance in the contention of the learned counsel for the petitioner that the revisional court committed illegality in setting aside the order passed by the learned SDM. The revision petition is devoid of merit and liable to be dismissed. 9. In the result, the revision petition stands dismissed.Petition dismissed. *******