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2012 DIGILAW 1287 (GAU)

Mojid Ali Sheikh v. State of Meghalaya

2012-11-21

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. Heard Mr. S.R. Sen, learned senior counsel assisted by Mr. E. Nongbri, learned counsel for the petitioner. Also heard Mr. B. Bhattacharjee, learned counsel appearing for respondent No. 3. This revision petition has been filed for quashing of judgment and order dated 16.4.2010 passed by the learned Addl. District Magistrate-cum-Sessions Judge, West Garo Hills, Tura in Criminal Appeal No. 12 of 1993 upholding the attachment order passed by the learned Magistrate, Tura in Misc. Case No. 56/1981. 2. Shorn of details, the facts of the case may be briefly noted. 3. Third respondent filed a petition dated 17.11.1981 before the Addl. Deputy Commissioner at Tura alleging that the second party (petitioner herein) was trying to dispossess her from her paternal property which was described in the schedule to the petition. The schedule land is covered by PP No. 6, Dag Nos. 464, 469, 471, 474, 477, 302, 93 and 307 of village Shyamding, Mouza No. VI, Lot No. 1 in West Garo Hills District, Meghalaya. However, as against the 8 dags mentioned, boundaries of seven plots of land were mentioned. 4. Learned Magistrate, Tura registered the said petition as Misc. Case No. 56/1981 and on the same day i.e. 17.11.1981, after observing that he was satisfied that there was every likelihood of breach of peace between the parties in the locality for the possession of the disputed land, drew up a proceeding under Section 145 of the Code of Criminal Procedure (Cr.P.C.). While issuing notice to the second party, learned Magistrate directed attachment of the disputed land, prohibiting the parties to enter into the disputed land until further orders and also appointing the Officer-in-Charge of Phulbari Police Station as receiver of the disputed property. Shortly after the attachment order was passed, first party filed a petition stating that in the schedule to the petition, one dag of land was wrongly mentioned and attached. Accordingly, learned Magistrate passed an order on 30.11.1981 directing the Officer-in-Charge, Phulbari Police Station to release from attachment the plot of land which the first party stated was not in dispute. 5. Accordingly, learned Magistrate passed an order on 30.11.1981 directing the Officer-in-Charge, Phulbari Police Station to release from attachment the plot of land which the first party stated was not in dispute. 5. Twelve years after the preliminary order was passed, learned Magistrate passed the final order dated 05.10.1993 directing that the possession of the disputed land be handed over to the first party, prohibiting the disturbance of possession of the first party until and unless the first party is evicted from the disputed land in due course of law. Consequential order for release of the disputed land from attachment and release of auction money to the first party was also passed. 6. Petitioner filed an appeal before the appellate Court i.e. the Court of Addl. Deputy Commissioner, West Garo Hills, against the aforesaid order of the learned Magistrate. The appeal was registered as Criminal Appeal No. 12/1993. 7. Appellate Court, by the order dated 10.08.2000, dismissed the appeal holding that there was no ground to interfere with the order passed by the learned Magistrate. It was observed that the aggrieved party may approach the Civil Court for his remedy. 8. Petitioner approached this Court by way of a revision petition against the dismissal of his appeal, which was registered and numbered as Criminal Revision No. 2 (SH) 2001. This Court by judgment and order dated 03.06.2005 set aside the order dated 10.08.2000 and remanded the matter back to the appellate Court for a fresh decision. As there was delay in the disposal of the appeal following the order of this Court, petitioner again approached this Court in Criminal Revision No. 36 (SH) 2005. This Court by judgment and order dated 03.08.2007 disposed of the said revision petition by directing the appellate Court to re-hear the appeal and to dispose of the same within a period of two months. While disposing of the revision petition, this Court observed that the land not included in the preliminary order was wrongly attached by the Officer-in-Charge of Phulbari Police Station. This aspect of the matter was also directed to be looked into by the appellate Court while deciding the appeal. It was ordered that the attachment order would continue during the pendency of the appeal. Because of further delay, petitioner had to approach this Court again in Criminal Revision No. 26 (SH) 2009. This aspect of the matter was also directed to be looked into by the appellate Court while deciding the appeal. It was ordered that the attachment order would continue during the pendency of the appeal. Because of further delay, petitioner had to approach this Court again in Criminal Revision No. 26 (SH) 2009. This Court by order dated 12.03.2010 observed that there can be no justification to keep an appeal pending for so many years, which reflects lack of dedication of executive officers to the judicial function. Appellate Court was directed to dispose of the appeal within a period of six weeks. 9. Finally, the appellate Court re-heard the appeal and disposed of the same by order dated 16.04.2010. Curiously, the appellate Court upheld the attachment order of the learned Magistrate which was infact vacated by the learned Magistrate himself in favour of the first party by the final order dated 05.10.1993. 10. Aggrieved, petitioner is before this Court challenging the legality and validity of the order of the learned Magistrate dated 05.10.1993 as well as the appellate order dated 16.04.2010. 11. Mr. Sen, learned senior counsel submits that the first party herself had apprised the learned Magistrate that there was no dispute regarding one plot of land which was attached and on her submission, the attachment in respect of the said plot of land was vacated. He submits that when the learned Magistrate had himself vacated the attachment order in favour of the first party and directed handing over of possession of the disputed land to the first party, the order of the appellate Court upholding the preliminary order of attachment of the learned Magistrate defies all logic. It reflects non-application of mind on the part of the appellate Court below which calls for interference by this Court. He submits that there can be no justification for continuation of attachment, as attachment order cannot be for an indefinite period. 12. Mr. B. Bhattacharjee, learned counsel for respondent No. 3/first party on the other hand, argues that there is no infirmity either in the final order of the learned Magistrate or in the appellate order. A close reading of the appellate order would only show that the appellate Court did not find any infirmity in the order of attachment passed by the learned Magistrate and nothing more should be read into it. A close reading of the appellate order would only show that the appellate Court did not find any infirmity in the order of attachment passed by the learned Magistrate and nothing more should be read into it. He submits that the learned Magistrate had elaborately discussed the materials to justify possession of the first party and, therefore, such finding should not be interfered with by this Court. He also raises an objection that the petitioner has approached this Court under Section 482 Cr.P.C. when a remedy by way of revision is available to the petitioner under Section 397 read with Section 401 of the said Code. He, Therefore, prays for dismissal of the revision petition. 13. The submissions made have been considered. 14. Since respondent No. 3 has raised an objection as to the maintainability of the revision petition, the said objection is required to be attended to at the very outset. This court by order dated 23.07.2010, had admitted the revision petition for hearing. Since then more than two years have passed. At this stage, it will neither be fair nor in the interest of justice to dismiss the revision petition on the ground that it has been filed under Section 482 Cr.P.C. and not under Section 397/ 401 Cr.P.C.. In any case, remedy of revision under Section 397 Cr.P.C. read with Section 401 thereof is available to the petitioner. When such a remedy is available, reference to another provision, in the opinion of this Court, would not be a fatal flaw so as to warrant dismissal of the revision petition on a technical ground. In view of above, this Court is not inclined to accept the plea of respondent No. 3 that the present revision petition is not maintainable and, therefore, proceeds to hear and decide the revision on merit. 15. Section 145 Cr.P.C. lays down the procedure to be followed where dispute concerning land or water is likely to cause breach of peace. For ready reference, the aforesaid provision is quoted hereunder: 145. 15. Section 145 Cr.P.C. lays down the procedure to be followed where dispute concerning land or water is likely to cause breach of peace. For ready reference, the aforesaid provision is quoted hereunder: 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 or 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 rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of he parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, any if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. 16. From a close reading of the aforesaid provision, it is evident that for invoking jurisdiction under Section 145 Cr.P.C., the following conditions must be fulfilled: (1) A dispute should exist concerning any land or water or the boundaries thereof within the local jurisdiction of the concerned Magistrate; (2) Such a dispute is likely to cause a breach of the peace; (3) The concerned Magistrate should be satisfied from a report of a Police Officer or upon other information about the existence of conditions (1) and (2) above. Thus, the existence of the above three conditions is the sine qua non for exercise of power under Section 145 Cr.P.C.. All the three conditions must exist simultaneously. Once the Magistrate is satisfied about the existence of the aforementioned conditions precedent, he is to make an order in writing stating the ground of his satisfaction. The essence of Section 145 Cr.P.C. is to prevent breach of peace. All the three conditions must exist simultaneously. Once the Magistrate is satisfied about the existence of the aforementioned conditions precedent, he is to make an order in writing stating the ground of his satisfaction. The essence of Section 145 Cr.P.C. is to prevent breach of peace. In other words, there is an element of immediacy attached to a proceeding under Section 145 Cr.P.C.. By its very nature, such a proceeding has to be decided expeditiously and should not continue for a long period. The objective of Section 145 Cr.P.C. is to find out the party in possession of the disputed land and to protect his possession and thereby prevent breach of peace. It is not the objective of the aforesaid provision to determine other rights of the contesting parties, including the right to title, which should be decided by the appropriate Civil Court. 17. Having noticed the basic principles governing Section 145 Cr.P.C., the Court would now like to examine the orders impugned. 18. The preliminary order of attachment is dated 17.11.1981. For better appreciation, it is quoted hereunder: 17.11.81 Case received on transfer. Complainant is present with one witness. Both are examined on S/A Perused the complaint petition which is accompanied with an affidavit. I am satisfied that there every likelihood of breach of peace between the parties in the locality for the possession of the D/L. Draw up proceedings u/s. 145 Cr.P.C. Issue notice to the parties asking them to appear in my court and file W/s etc. to establish their respective claims. I am also satisfied that in view of harvesting season and due to three occurrences within last one month there is an emergent situation which can not be averted unless the D/L is attached. Attach the D/L prohibiting with the parties entering into the D/L until further orders. Also appoint O/C, Phulbari PS as receiver of the disputed property. The O/C, Phulbari PS will immediately take charge of the disputed property and take all necessary steps for the protection and preservation of the property. He will maintain proper account of the D/L and submit to this court every month. Inform O/C Phulbari PS accordingly. 19. Also appoint O/C, Phulbari PS as receiver of the disputed property. The O/C, Phulbari PS will immediately take charge of the disputed property and take all necessary steps for the protection and preservation of the property. He will maintain proper account of the D/L and submit to this court every month. Inform O/C Phulbari PS accordingly. 19. No finding was recorded as to the existence of any dispute with regard to the disputed land and about the source of satisfaction of the learned Magistrate either about existence of dispute or about likelihood of breach of peace relating to such dispute. Without any police report or information from any source, learned Magistrate proceeded to pass an order of attachment. This order is the foundation of the entire proceeding under Section 145 Cr.P.C.. In the final order passed after twelve years, again no finding has been recorded regarding either breach of peace or possession of the first party. Without recording such finding, the attachment order was vacated and possession of the disputed land was directed to be handed over to the first party. The relevant portion of the final order dated 05.10.1993 is as under: In order to arrive at the decision in this case I decide to take into consideration the following two points which are also the essential ingredients of Sec. 145 Cr.P.C. (1) Whether the dispute over the D/L situated at Village Shyamding is likely to cause a breach of peace between the parties. (2) Who is in actual possession over the D/L on the date of the order under Section 145(1) Cr.P.C. dated 17.11.81. Point 2 Let me first discuss the Point 2. Four PWs have been examined and cross-examined. PW 1, 2, 3 and 4 including the 1st Party who is PW 4, so also four DWs were examined and cross-examined. DW 1, 2, 3 and 4 including the 2nd Party who is DW 4. Heard the submission of the counsel for the 1st party who submitted that although each party has examined four witnesses each, the 2nd party has failed to adduce any legal evidence to prove his possession of the D/L. DW 1 Shri Samsul Huda deposed that 1st party and her sister Abia Khatun sold the D/L measuring about 33 bighas for Rs. 500/- to the 2nd party. 500/- to the 2nd party. DW 2 Shri Mohammed Ali said that he was a witness of the Sale Deed shown as Ex. 3. The Sale Deed exhibited by 2nd party was rejected because it was not property stamped under Section 36 of Court fees Act in the order dated 15.3.1990, the counsel said. An appeal on rejection of sale deed filed by 2nd party in Appellate Court in Misc. Appeal No. 10/90 under Section 145 Cr.P.C. was withdrawn in the order dated 7.4.92, further of 1st party and that he purchased the D/L. The counsel for the 1st party further stated that the fire incident destroyed all the revenue record, lying with Shri Kandura Marak concerning Mouza No. VI Lat No. 1. PW 1 Keru SK who is a boundary man testified that D/L was possessed by 1st party before attachment. PW 2 Shri Jolibuddin also deposed that the D/L was in possession of the 1st party. He know about it as he is the boundary man. PW 3, Nabab Ali was a boundary man of 4 plot, out of 7 plots. He also stated that he know personally that the D/L was cultivated by the sons of the 1st party. Considered the submission of the counsel for the 1st party. Let me also examine the statements made by the 1st party and 2nd party. PW 4, Ajiman Nesa, the 1st party stated that about 8/9 years back while her sons were ploughing the D/L for sowing the mustard seed, the members of the 2nd party came and threatened them talking that the D/L belonged to them. About a month later when her sons went for irrigating the land the members of the 2nd party again threatened them with dire consequences stating that the 2nd party members would harvest the paddy. She said that D/L measures about 33 bighas and are located in 7 separate plots she denied that she ever sold the D/L to the 2nd party. DW 4, Shri Hyder Ali, the 2nd party said that originally the D/L belonged to the father of 1st party and that he purchased the D/L after the death of the father of 1st party from the 1st party and her sister Abia Khatun after which he wanted possessing the D/L and it was cultivated by his sons. DW 4, Shri Hyder Ali, the 2nd party said that originally the D/L belonged to the father of 1st party and that he purchased the D/L after the death of the father of 1st party from the 1st party and her sister Abia Khatun after which he wanted possessing the D/L and it was cultivated by his sons. DW 1, 2 and 3 do not give much evidential support to the claim of the 2nd party that he was in possession of the D/L all along before commencement of the proceeding under Section 145 Cr.P.C. whereas PW 1, 2 and 3 substantiated the claim of the 1st party that she was in possession of the D/L until she was forcibly dispossessed by the 2nd party in 1981. Point 1 There is no further report from any quarter of the continuing existence of breach of peace between the parties. In view of my findings and the evidence adduced it is ordered that- (i) Possession of the D/L be handed over to the 1st party. Any disturbance of such possession is forbidden until evicted therefrom in due course of law. (ii) Release the D/L from attachment forthwith. (iii) Release all the auction money to the 1st party. A bare reading of the final order would indicate that the learned Magistrate did not at all consider the essential requirements of a proceeding under Section 145 Cr.P.C.. Infact, there is no finding as to the likelihood of breach of peace. 20. To complete the sequence, the appellate Court after seventeen years of passing of the final order, curiously enough upheld the attachment order of the learned Magistrate, which was subsequently vacated by the Magistrate himself. The relevant portion of the order of the appellate Court reads as under: I have gone through the records of the case and order passed by Magistrate 1st Class, West Garo Hills on 5.10.1993. It appears that while disposing Misc. Case 56/81 under Section 145 Cr.P.C. the trial court bring evidence of witnesses come to the conclusion that the respondent/first party was in physical possession of the disputed land in view of the evidence duly recorded by the trial court with regard to the land and in view of the counter claims of the appellant about the physical possession of the seven plots of land in Mouza VI Lot No. 2 Village Shyamding. It is clear that Lot No. 2 is covered by PP No. 16 Dag Nos. 464, 469, 471, 477, 302, 93 and 307 in Mouza No. VI in Shyamding village and as such the wrong mentioning of the Lot No. 1 in place of Lot No. 2 in the proceeding of the trial Magistrate would not initiate the in claim of the respondent/first party as in the schedule of the petition under section 145 Cr.P.C. she has properly show plots with Patta No. and Dag numbers and the boundaries of the respective plots, which is also duly rounded by the prosecution witnesses. In view of the forgoing discussion, the appeal is partly allowed to the extent that attachment of the plots beyond seven numbers of plots under Dag No. 462, 468, 474 and 479 in the claim petition in vacated. So far as the attachment order in respect of the seven numbers of plots covered by PP No. 16 Dag Nos. 464, 469, 471, 477, 302 93 and 307 as mentioned in the schedule of the claim petition is upheld. The appeal is thus disposed off. The parties are left to bear their own costs. 21. From a reading of the aforesaid three orders, it is quite apparent that the authorities below have not at all considered the basic minimum requirements of Section 145 Cr.P.C. and allowed such a proceeding to drag on for more than thirty years. Such a situation cannot be allowed to remain unremedied. While passing the final order, learned Magistrate candidly stated that there was no report indicating breach of peace. In the face of such material, the impugned orders cannot survive the scrutiny of the Court. 22. In view of the discussions made above, the revision petition is allowed. All the orders passed in the proceeding under Section 145 Cr.P.C., namely, orders dated 17.11.1981, 05.10.1993 and 16.04.2010 are hereby set aside and quashed. 23. Notwithstanding quashing of the aforesaid orders, it would be open to any of the interested parties, if they feel aggrieved, to approach the Civil Court of competent jurisdiction for establishment of their legal rights over the land in question. 24. Revision petition accordingly stands allowed. No cost. Petition allowed.