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2010 DIGILAW 818 (GAU)

Bahunlang Sylliang Daughter v. Bih Syngkli

2010-10-19

TINLIANTHANG VAIPHEI

body2010
JUDGMENT T. Vaiphei, J. 1. Heard Mr. P Nongbri, the learned Counsel for the Petitioner. None appears for the Respondents despite proper service of notice upon them. 2. The application is directed against the proceedings under Section 145 Code of Criminal Procedure initiated by the learned Executive Magistrate, Ribhoi District, Nongpoh on the basis of the police report dated 26.6.2008 and dated 18.8.2008. 3. The case of the Petitioner, shorn of unnecessary details, is that she is the owner in possession of the disputed plot of land situated at Sohkhwai Village, Raid Sohkhwai, Nongpoh sirdarship, Ri-Bhoi District. The disputed plot was settled with her by the Village Dorbar of Sohkwai by virtue of the land document dated 26.8.1995, which was later on confirmed by the Sirdar of Nongpoh Sirdarship. The Chief Officer, Khasi Hills Autonomous District Council vide Memo dated 11.02.2008 has also granted registration/approval to the Private Tree Plantation of the Petitioner on the disputed land. The ownership of the Petitioner over the disputed land was confirmed by the Court of the Chairman, Village Court, Nongpoh Sirdarship when the suit was decreed against the Respondents on 28.03.2008. As no appeal was preferred against this decree, the same declaring her to be the owner of the disputed land has attained finality. Despite this, in the month of June, when she sent her labourers to the disputed plot for carrying out rubber plantation, one Shri Pradeep Rani, claiming himself to be an agent of the Respondents came to the disputed land and threatened her labourers with dire consequences. She thereupon lodged an FIR on 24.06.2008 with the Officer-in-Charge, Byrnihat Police Station for taking appropriate action against him. According to the Petitioner, the Officer-in-Charge of Byrnihat Police Station, instead of honouring and complying with the said decree of the competent court of civil jurisdiction and without taking any action against the said Pradeep Rani, submitted a report before the learned Executive Magistrate, Ri-Bhoi District wherein he had stated that there were claims and counter claims over the land and this dispute between the parties were likely to cause breach of the peace between the parties on the disputed land and therefore, recommended a proceeding under Section 145 CrPC. The learned Executive Magistrate by its order dated 18.08.2008 registered a CT Case No. 13 of 2008 and drawn up proceedings under Sections 145 CrPC. The learned Executive Magistrate by its order dated 18.08.2008 registered a CT Case No. 13 of 2008 and drawn up proceedings under Sections 145 CrPC. The learned Executive Magistrate also in the same order drew up proceeding under Section 107 Code of Criminal Procedure and directed both the parties to show cause as to why they should not be ordered to execute a bond of Rs.10,000/-(Rupees ten thousand) only for each with or without surety of the like amount for a period of one year. Aggrieved by these, this criminal petition has been filed by the Petitioner. 4. Annexure 9 to the criminal petition is the order/decree dated 28.03.2008 passed by the Village Court, Nongpoh Sirdarship in which it declared that the Petitioner was the legal owner of the disputed land and that all the documents of the Respondents were illegal and in violation of the prevailing customs and usages. Though this order was passed ex-parte, there is no evidence that the Respondents had subsequently got it set aside. Nor there is any evidence to show that any appeal was preferred against this order. Under the circumstances, the order of the civil court has attained finality and is, therefore, binding upon all concerned. In my opinion, when there is an order of a competent civil court declaring the ownership of a person over a land, such order should be treated with respect by civil authorities. It is true that under Section 145 Code of Criminal Procedure and Section 107 CrPC, the Executive Magistrate has the power to draw up proceeding against the parties to prevent breach of peace between them in connection with a dispute over a landed property. However, the Executive Magistrate is not expected to treat each and every complaint about a dispute as to possession of a land over which a person has already obtained a civil court decree. This approach adopted by the learned Executive Magistrate in dealing with Section 145/107 Code of Criminal Procedure is wholly erroneous and suffer from jurisdictional errors. If any authority is needed, we may usefully refer to the observations of the Apex Court in Kunjbihari v. Balram and Anrs, 2006 11 SCC 66 , which reads thus : 1. Leave granted 2. This approach adopted by the learned Executive Magistrate in dealing with Section 145/107 Code of Criminal Procedure is wholly erroneous and suffer from jurisdictional errors. If any authority is needed, we may usefully refer to the observations of the Apex Court in Kunjbihari v. Balram and Anrs, 2006 11 SCC 66 , which reads thus : 1. Leave granted 2. It is not disputed that the property forming the subject-matter of proceedings under Section 145 of the Code of Criminal Procedure (CrPC) was the subject-matter of civil suit between the parties. The rights of the parties have been adjudicated upon by the civil court. An execution petition filed by the Respondents herein was also dismissed in view of the adjudication of rights by the civil court based on a compromise. Inasmuch as the rights of the parties stand settled by a compromise decree taken on record of the court during the pendency of civil proceedings inter parties, none of the parties is justified in reagitating the same issue. The parties must respect the decree of the court. In spite of the civil proceedings having achieved finality it appears that proceedings under Section 145Code of Criminal Procedure were initiated. The Appellant sought the proceedings being dropped in view of the civil court's decree. As that prayer was not acceded to, the Appellant approached the High Court under Section482 Code of Criminal Procedure seeking quashing of the proceedings under Section 145 CrPC. The petition has been rejected by the High Court forming an opinion that in spite of the civil court's decree, proceedings under Section 145 Code of Criminal Procedure may continue. 3. Having heard the learned Counsel for the parties, we are satisfied that the proceedings under Section 145 Code of Criminal Procedure are an abuse of the process of the court in the facts of the present case. The rights of the parties have already been adjudicated upon. If any party claims to be in possession of the property and seeks its protection, it is for that party to approach the civil court and an appropriate order. The proceedings under Section 145 Code of Criminal Procedure cannot be allowed to be continued in the facts and circumstances of the case. 4. The appeal is allowed. If any party claims to be in possession of the property and seeks its protection, it is for that party to approach the civil court and an appropriate order. The proceedings under Section 145 Code of Criminal Procedure cannot be allowed to be continued in the facts and circumstances of the case. 4. The appeal is allowed. The impugned order of the High Court is set aside and the proceedings under Section 145 Code of Criminal Procedure are directed to be dropped 5. When the ownership of the disputed land is already decided by a competent civil court of jurisdiction such as the Village Court herein, the learned Executive Magistrate ought not to have drawn up proceeding under Section 145/107 Code of Criminal Procedure and rather ought to have enforced such order of the civil court by binding over the Respondents who sought to disturb the possession of the Petitioner in respect of the disputed land. The learned Executive Magistrate has clearly exceeded his jurisdiction in drawing up the proceeding under Section 145/107 Code of Criminal Procedure which is an abuse of the process of the Court. This calls for the interference of this Court. 6. For what has been stated in the foregoing, this criminal petition is allowed. The impugned proceeding in CT Case No. 13 of 20087 pending before the learned Executive Magistrate, Ri-bhoi District, Nongpoh is hereby quashed. The possession of the Petitioner over the disputed land shall not be disturbed by the Respondents except by due process of law. Petition allowed.