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2012 DIGILAW 1991 (ALL)

GANESH MISHRA v. STATE OF U. P.

2012-08-31

SUNIL HALI

body2012
JUDGMENT Hon’ble Sunil Hali, J.—Applicants have come before this Court under Section 482 seeking quashment of the impugned orders dated 14.6.2009 and 14.7.2003 and proceedings of Case No. 6 of 2003 under Section 145 Cr.P.C., Ganesh Mishra and another v. Ram Krishan Kheria and another, Police Station Badshahi Naka, District Kanpur Nagar, Pending in the Court of City Magistrate, Kanpur Nagar. 2. The dispute relates to first floor of house No. 49/32 Generalganj, District Kanpur Nagar. The said floor was under the tenancy of Punjab National Bank since long time. According to the applicants, the Police Station Badshahi Naka, District Kanpur Nagar sent a challani report dated 14.7.2003 for initiation of proceedings under Section 145 Cr.P.C. between the parties. After receiving the said challani report, on 14.7.2003 the City Magistrate, Kanpur Nagar has passed the preliminary order under Section 145(1) of Cr.P.C. directing the parties to appear before him on 23.7.2003 and file written objection in support of their claim. An order under Section 146(1) Cr.P.C. has also been passed by the City Magistrate directing the attachment of the property in dispute. 3. The applicants had earlier filed Criminal Misc. Application 473 of 2009 under Section 482 Cr.P.C. before this Hon’ble Court which was disposed of by an order dated 23.1.2009 with the direction to the City Magistrate, Kanpur Nagar to consider and decide the Case No. 6 of 2003 under Section 145 Cr.P.C. in accordance with law expeditiously preferably within three months. In pursuance of the said order, the matter was referred to the City Magistrate in proceedings under Section 145 Cr.P.C. in Case No. 6 of 2003. The Interim order passed by the City Magistrate dated 24.6.2009 has been placed by the applicants before this Court as Annexure 20 alongwith the present application. The applicants also filed order sheet of the Court below as Annexure 21 alongwith this application for the purpose of deciding controversy. 4. The order dated 24.6.2009 on the order sheet shows that the case was called out but the parties are not present, accordingly the case was directed to be listed on 13.7.2009. However, perusal of the order dated 24.6.2009 annexed as Annexure 20 shows that the City Magistrate passed a detailed order on that day. 4. The order dated 24.6.2009 on the order sheet shows that the case was called out but the parties are not present, accordingly the case was directed to be listed on 13.7.2009. However, perusal of the order dated 24.6.2009 annexed as Annexure 20 shows that the City Magistrate passed a detailed order on that day. The Magistrate recorded a finding that the property in dispute was in possession of the applicants on the basis of the record which was produced before him and directed the parties to maintain status quo till the civil suit pending between the parties is disposed of. This order is subject-matter of challenge before this Court. 5. Applicants’ case is that no such order was passed on 24.6.2009 and the case was adjourned to 13.7.2009. On the other hand, the case of the other side is that order was passed on 24.6.2009 and the Magistrate has directed the parties to maintain status quo till the civil suit is decided. 6. I have heard learned counsel for the parties and perused the record. The proceedings under Section 145 Cr.P.C. are intended to avoid the breach of peace when a dispute is raised in respect of possession of the property. Section 145 (1) provides as under : “(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. 7. In view of this, it is compulsory that before drawing the preliminary order, the Magistrate has to be satisfied on the following counts : 1. There exists any dispute in respect of any land, water or boundaries. 2. The dispute is likely to cause breach of peace. 3. The said information is received by the Magistrate from report of the police officer or from other information source. 4. Magistrate is to record his satisfaction stating the grounds of his being so satisfied. 5. There exists any dispute in respect of any land, water or boundaries. 2. The dispute is likely to cause breach of peace. 3. The said information is received by the Magistrate from report of the police officer or from other information source. 4. Magistrate is to record his satisfaction stating the grounds of his being so satisfied. 5. Magistrate is to call other parties to file their written statements. 8. These are essential conditions of framing the preliminary order. If the preliminary order is defective, the proceedings initiated on that basis are null and void. In view of the impugned order reveals that on the basis of a report submitted by the police station dated 14.7.2003, the cognisance has been taken by the Magistrate under Section 145 as well as 146(1). The report reveals that there exists a house (bearing No. 49/32) sitauted in Generalganj which is owned and possessed by the rival parties. In that house, the share of the applicants is 2/3 and the share of the private parties is 1/3. 9. The property was under the tenancy of the Punjab National Bank who have vacated the premises. It is apprehended that the applicants are likely to occupy the said property. On the basis of this report, the Magistrate has passed the preliminary order stating that he is satisfied with the police report that there exists dispute in respect of possession of the said property which may cause breach of peace. While initiating proceedings under Section 145, the Magistrate has not disclosed in preliminary order the grounds on the basis of which he has assumed the satisfaction that there existed a dispute between the parties in respect of the possession on the property in dispute which may cause breach of peace which is one of the necessary condition of Section 145 Cr.P.C. In absence of disclosing the grounds of his satisfaction, the order gets vitiated. 10. Second question assuming that no such order has been passed by the Magistrate on 24.6.2009, as the parties were not present on that day and as such the case was adjourned to 13.7.2009, the same is also vitiated Section 145 (4) and (6). The property in dispute was in occupation of the Punjab National Bank and the same has been vacated by it and possession was handed over to the Ganesh Mishra-applicant. The property in dispute was in occupation of the Punjab National Bank and the same has been vacated by it and possession was handed over to the Ganesh Mishra-applicant. The only recourse left to the Magistrate was to declare the applicants as being in possession of the property unless he is deemed to have been evicted in due course of law. As such the order passed by the Magistrate directing the parties to maintain status quo, is beyond his jurisdiction. In view of the above, the present application is allowed and the impugned order dated 14.6.2009 and 14.7.2003 are set aside. The S.H.O. is directed to hand over the possession of the property in dispute to the applicants. ——————