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2012 DIGILAW 40 (JK)

Abdul Gani Rather v. Fayaz Ahmad Khan & Ors.

2012-02-04

HASNAIN MASSODI

body2012
1. Challenge in this Criminal Revision petition is to the order dated 30.03.2002 passed by JMIC (Sub Registrar) Srinagar, in application under Section 145 Cr. P.C titled Abdul Gani Rather v. Fayaz Ahmad Khan and others (file No. 9/Misc), whereby learned Magistrate held Shri Fayaz Ahmad Khan in actual possession of disputed land measuring 1&1/2 Maria with a shed existing thereon, as on the date of preliminary order and directed Supradar (SHO) Police Station concerned to hand over possession of the disputed strip to Shri Fayaz Ahmad Khan respondent No. 1 before the Magistrate. Questioned in the revision petition is also the order of learned 4th Additional Sessions Judge, Srinagar in Criminal Revision titled Abdul Gani Rather v. Fayaz Ahmad Khan and others (file No. I/Rev), whereby learned Revisional Court has dismissed the Revision petition and upheld the order of JMIC (Sub Registrar) dated 30.03.2002.) 2. The Criminal Revision on hand arises in the following background. 3. The petitioner on 24.01.2001 approached learned Chief Judicial Magistrate, Srinagar with an application under Section 145 Cr. P. C. The application was transferred to JMIC (Sub Registrar), Srinagar for its disposal under law. The-petitioner's case was that he was owner in possession of a chunk of land measuring 5 Marias comprising Survey No. 27 Min Khewat No. 4 situated at Firdous Colony Eidgah, Srinagar; that the property in question was purchased by the petitioner through two sale deeds registered on 13.08.1977 and 31.01.1983; that about a month prior to the filing of the application, the respondents without any cause started interfering in petitioner's possession over 1&1/2 Maria out of the aforesaid chunk of land and the matter was brought to the notice of Intizamia Committee of Firdous Bagh Aali Masjid, Srinagar and the Committee in turn referred the matter to the Superintendent of Police. It was further pleaded that Superintendent of Police transmitted the matter to SHO Police Station Safakadal, who filed an application under Section 145 Cr. P. C. before Executive Magistrate/Tehsildar concerned; that Executive Magistrate/Tehsildar vide order dated 20th January, 2001, declined to entertain the matter as according to him it fell beyond his jurisdiction and advised SHO Police Station, Safakadal to approach the regular Court (Judicial Magistrate 1st Class). P. C. before Executive Magistrate/Tehsildar concerned; that Executive Magistrate/Tehsildar vide order dated 20th January, 2001, declined to entertain the matter as according to him it fell beyond his jurisdiction and advised SHO Police Station, Safakadal to approach the regular Court (Judicial Magistrate 1st Class). The petitioner complained that as SHO Police Station Safakadal ignored to move the regular Court, the respondents got emboldened, tress-passed into 1&1/2 Maria strip and by resorting to muscle power, constructed a Tin Shed on the said strip, though the petitioner had already dumped building material on the disputed property. It was further pleaded that there was threat, to the public peace and tranquility, constraining the petitioner to file application under Section 145 Cr. P.C. 4. Learned Magistrate, after preliminary order was drawn in terms of Section 145(1) Cr. P. C., issued notice to the parties to submit their written claims as regards possession of the disputed property and evidence in the shape of duly verified affidavits in support of their respective claims. On a separate application under Section 145 (4) Proviso 3, learned Magistrate attached the property and entrusted it to SHO Police Station Safakadal as Supradar of the property. 5. The parties filed their written statements as also evidence in the shape of affidavits and other documents in support of their respective stands. Learned Magistrate after going through the written statements and the evidence brought on file and making a threadbare discussion of the evidence and assessing its creditworthiness, recorded satisfaction that the respondent No. 1 was in actual possession of the disputed land on the date the preliminary order dated 30.03.2002 was framed and within two months immediately there before. Resultantly, respondent Fayaz Ahamd Khan was held entitled to the possession of disputed land till he was evicted therefrom in due course of law. The Superdar— SHO Safakadal, was accordingly directed to hand over possession of the disputed land to the respondents. 6. The petitioner, aggrieved with the order of Learned District Magistrate dated 30.03.2002, approached Sessions Court with a revision petition seeking setting aside of the impugned order. Learned Revisional Court minutely examined the order impugned and the record, and on such examination found no illegality or infirmity in the order so as to warrant interference under Section 435 Criminal Procedure Code. The revision was accordingly dismissed on 29.05.2002. 7. Learned Revisional Court minutely examined the order impugned and the record, and on such examination found no illegality or infirmity in the order so as to warrant interference under Section 435 Criminal Procedure Code. The revision was accordingly dismissed on 29.05.2002. 7. The order of learned Revisional Court dated 29th May, 2002 and that of JMIC (Sub Registrar), Srinagar dated 30th March, 2002 are assailed in the revision petition on hand on the grounds that the trial Magistrate acted illegally and with material irregularity, while applying law to the facts of the case. It is averred that the trial Magistrate has exercised jurisdiction not vested in it by law and that the impugned orders depict mis-appreciation of material placed on the file. The Revisional Court, according to the petitioner failed to appreciate that the learned Magistrate had rejected the petitioners claim on the ground of an error in the petitioners' affidavits, without appreciating that such error was attributable to the negligence of petitioners' lawyer and that the petitioner was not to be penalized for the error. 8. I have gone through the petition; record received and have heard learned counsel for the parties. 9. Section 145 Cr. P. C. finds place in para IV of the Code of Criminal Procedure Samvat 1989 tiled "Prevention Of Offences" Sections 106 to 153 of the Code deal with different situations where commission of offence apprehended is prevented, by employing the mechanism envisaged in said provisions. The end purpose is to maintain peace, tranquillity and public order and prevent commission of offences and make people to have recourse to law to get their grievances redressed. Section 145 of the Code deals with a situation, where dispute regarding possession immove-able property is likely to threaten peace and public order. The provision anticipates a situation where two or more person having dispute over immoveable property may instead of having recourse to the remedy available under law; make use of muscle power to settle such dispute. The conflict in such a situation is likely to have negative fallout on public peace and tranquillity. The provision delineates the procedure followed in such a situation, to prevent breach of peace. The conflict in such a situation is likely to have negative fallout on public peace and tranquillity. The provision delineates the procedure followed in such a situation, to prevent breach of peace. One of the tools available to the Magistrate in such a situation is to attach the subject of the dispute pending his enquiry as to possession of such property, in the event he considers the case as one of emergency. Once it is brought to the notice of the Magistrate that the dispute likely to cause breach of peace exists concerning any immoveable property and he is satisfied on the basis of information received that such a dispute does exist, the Magistrate is to issue notice to the parties to appear before him to attend his Court and to put their respective claims as respects the fact of actual possession of subject of the dispute and the documents/evidence in their possession to reinforce their respective claims. The Magistrate thereafter has to embark on an enquiry as to possession of the subject matter and conclude such inquiry within a period of two months from the date of the appearance of the parties before him and on its conclusion decide as to who amongst the parties was in actual possession of the subject matter on the date the preliminary order in terms of Section 145 (1) of the Code was made or within two months immediately before said date. 10. It is pertinent to point out that the Magistrate has not to decide the entitlement of the parties to the possession of the subject matter or question of title of the parties to such property. The Magistrate has also not to find out as to who amongst the parties has a better claim to the property. The only and only agenda of the Magistrate Under Section 145 is to look into the "actual possession" of the "subject of the dispute" on the date preliminary order was drawn or within two months before such order, without looking into the question of title or the rights of the parties as regards the subject matter. The only and only agenda of the Magistrate Under Section 145 is to look into the "actual possession" of the "subject of the dispute" on the date preliminary order was drawn or within two months before such order, without looking into the question of title or the rights of the parties as regards the subject matter. The object is not to allow the dispute as regards the possession of immoveable property to have a negative spill over on public peace and tranquillity and after determining the actual possession within the meaning of Section 145 (4) of the Code allow the parties to get their rights determined and work out remedy before the Civil Court. Having said so, let us examine whether learned Magistrate and the Revisional Court have been alive to the spirit and scope of enquiry in terms of Section 145 Cr. P. C. and whether the orders impugned are conformity in with law. 11. A closer look at the orders impugned reveals that learned Magistrate while going through the respective claims of the parties as regards "actual possession" of the subject of the dispute was conscious that what he had to find out was not the right or entitlement of the parties to the subject of the dispute but the factum of possession on the date preliminary order was drawn. Learned Magistrate on an objective and dispassionate perusal of the material brought on the file by the parties found the respondent to have been in actual possession of the subject of the dispute on the date the preliminary order was drawn. Learned Magistrate while arriving at such a conclusion, had cogent, reliable and convincing material available before him. Learned Magistrate referring to the complaint, filed by the local Police before the Executive Magistrate.and relied upon by the petitioner, held the respondent to have raised a Tin Shed on the subject of the dispute in June, 2000. Learned Magistrate on consideration of the material observed:- "During the course of arguments the counsel for petitioner had argued that the shed was constructed illegally by the respondent No. 1 which was later on demolished by the Municipal; Authorities. This argument coupled with the averments made in the para- 6 of the petition established the fact of existence of tin shed on the land in question. This argument coupled with the averments made in the para- 6 of the petition established the fact of existence of tin shed on the land in question. In the instant proceedings the court is not concerned whether the shed was constructed legally or illegally. From perusal of annexure E- 9 relied up by the petitioner read with averments made in para-6 of the petition, it is established that the shed of Fayaz Ahmad Khan on the disputed land was in existence from June, 2000 to the date of framing of preliminary order, and the Police report also reveals the existence of Shed on sport which the Police had attached in compliance with the attachment order of this Court. The water Tax fee Book and G. R. No. 23392 dated 21.06.2000 placed on record by respondent No. 1, also established the fact that Fayaz Ahmad Khan(respondent No. 1) had obtained a water connection No. 81519 at Saidapora, which falls within the area of Eidgah, Sgr. As has been mentioned in the residential address in the affidavit of Gh. Rasool Bhat, which affidavit has been placed on record by the petitioner......in the affidavits of the independent witnesses produced by the respondents, it has been deposed that the respondent No. 1 has been putting up in this tin shed alongwith his family since March, 2000. For these reasons, the possession of the respondent No. 1 in respect of the land in question on the relevant date is established." 12. Learned counsel for the petitioner while addressing his arguments referred in detail to the material on the file to identify discrepancies and contradictions in the material. Learned counsel on the ground of such discrepancies is keen to persuade the Court to set aside the order impugned in the petition on the ground that the conclusions drawn by the Court below are not sustainable on such material. The course suggested by learned counsel for petitioner is not available to the Court and cannot be followed while exercising revisional jurisdiction under Section 435 of the Code. The revisional jurisdiction is restricted to the examination of the order impugned, to find out whether it suffers from any illegality or impropriety and does not extend to re-appreciation of the material available to the Trial Magistrate. The revisional jurisdiction is restricted to the examination of the order impugned, to find out whether it suffers from any illegality or impropriety and does not extend to re-appreciation of the material available to the Trial Magistrate. This Court while exercising the writ jurisdiction is not to scan, sift and analyze evidence before the learned Magistrate so as to find out whether this Court would have arrived at a conclusion different from one, recorded by learned Magistrate. 13. The High Court while exercising revisional jurisdiction cannot assume the role of an Appellate Court, which is wider in scope. The Supreme Court in Bindeshwari Prasad Singh Alias B.P. Singh v. State of Bihar AIR 2002 SC 2907 , taking an exception to the tendency of the High Courts to re-appreciate evidence while exercising revisional jurisdiction has observed: "It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the Trial Court.....it may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the Trial Court but that by itself is no justification for exercising of revisional jurisdiction...." 14. In the present case learned Magistrate has neither improperly accepted nor rejected any evidence neither is there any defect in procedure followed or any illegality in conducting of the proceedings. 15. For the reasons discussed above, the orders impugned in the petition do not suffer from any illegality or impropriety as would warrant interference under Section 435 of the Code in exercise of revisional powers under Section 435 of the Code. So viewed, the petition is meritless and is accordingly dismissed. Record be returned back.