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2015 DIGILAW 1207 (JHR)

Yashwant Singh v. State of Jharkhand

2015-10-01

RAVI NATH VERMA

body2015
ORDER : 1. Invoking the inherent power of this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioner has prayed for quashing of the order dated 15.2.2008 passed by the Sub-Divisional Magistrate (in short the S.D.M.) Bermo at Tenughat in Case No. 19 of 2008 by which the proceeding under Section 144 of the Code had been initiated with respect to the land appertaining to Khata No. 34, Plot no. 96, area 0.53 acres and also the land of Khata No. 01, plot no. 53, area 3.10 acres of Mouza Burhsera within Dugda Police station, Bokaro and for quashing of the subsequent orders dated 28.2.2008 and 5.3.2008 whereby the said proceeding has been converted under Section 145 and order for attachment of the disputed land under Section 146(1) of the Code has been passed and the Officer-in-charge, Dugda Police Station has been appointed as receiver of the said land respectively. 2. Before I examine the initiation of the proceeding under Section 144 and its conversion under Section 145 of the Code, the background of the case is necessary to be discussed to appreciate the issue involved in this case. The case of the petitioner, as it appears from the record, is that the petitioner has been coming in possession of the disputed land appertaining to Khata no. 1, Plot no. 53, area 3.10 acres and Khata no. 34, Plot no. 96, area 0.53 acres of land of village Burhsera within Dugda Police station, Bokaro and substantial structures were also constructed over the said land. But the opposite party no. 3 Baneshwar Manjhi also claimed his right, title and interest over the aforesaid land and tried to disturb the uninterrupted possession of the petitioner. The said Baneshwar Manjhi opposite party no. 3 had earlier filed a land restoration case bearing no. 46 of 2006-2007 in the Court of L.R.D.C. Bermo at Tenughat against the present petitioner and other family members in respect of the disputed land and which was decided in his favour vide order dated 16.3.2007. Being aggrieved by the said order, the petitioner preferred land restoration appeal bearing appeal no. 5 of 2007 before the learned Additional Collector, Bokaro but the appeal was dismissed vide order dated 12.11.2007. Being aggrieved by the said order, the petitioner preferred land restoration appeal bearing appeal no. 5 of 2007 before the learned Additional Collector, Bokaro but the appeal was dismissed vide order dated 12.11.2007. Whereafter, the petitioner and others moved before the learned Commissioner, North Chhotanagpur Division, Hazaribag in Revision No. 134 of 2007 and prayed for stay of the orders of appellate court as well as original court and after hearing both the parties, the revisional court by order dated 20.11.2007 stayed the orders of both the courts. But on 14.11.2007, the opposite party no. 3 Baneshwar Manjhi along with his associates tried to forcibly enter and take possession of the land in dispute and in such attempt committed overt act but due to intervention of Circle Officer and Magistrate, the matter was settled. However, Dugda P.S. Case No. 37 of 2007 was instituted at the instance of the petitioner on 15.11.2007 under Sections 147, 427 and 379 of the Indian Penal Code against the opposite party no. 3 and others. Again on 15.2.2008, the opposite party no. 3 along with his men armed with various weapons came to his house and destroyed several house hold articles and valuables. During their aggressive activities, the police party along with high officials arrived there and took control over the situation whereafter Dugda P.S. Case no. 6 of 2008 was lodged on 15.2.2008 under Sections 147, 148, 149, 323, 452, 427, 379/504 I.P.C. against opposite party no. 3 Baneshwar Manjhi and his associates, who also lodged one case bearing Bokaro Sector-IV P.S. Case No. 2 of 2008 on 17.2.2008 under Section 3 (iv) (x) of SC/ST (Prevention of Atrocities) Act, 1989 against the petitioner and others. Apprehending the breach of peace between the parties, Sub-Divisional Magistrate, Bermo at Tenughat at his own instance initiated and drawn up the proceeding under Section 144 of the Code and directed both the parties to maintain peace and restrained them from going over the disputed land and further directed both the parties to file their respective show causes. However, from the order-sheet of the court of S.D.M. Bermo at Tenughat, it appears that none of the parties filed their show cause. However, from the order-sheet of the court of S.D.M. Bermo at Tenughat, it appears that none of the parties filed their show cause. So, after receiving the report of the officer-in-charge of the concerned police station and the report of the Circle Officer on 28.2.2008, the S.D.M. apprehending the breach of peace between the parties and their attempt to take possession of the land in question converted the proceeding under Section 145 of the Code and again directed both the parties to file their respective show causes. Since, the situation was not under control and was still grim and tense between the parties, the learned S.D.M. apprehending any untoward incident attached the property in dispute under Section 146(1) of the Code and appointed the Officer-in-charge, Dugda police station as receiver. 3. Learned counsel Mr. Mishra appearing for the petitioner assailing the initiation of proceeding under Section 144 of the Code at the instance of Sub-Divisional Magistrate and its conversion under Section 145 of the Code and attachment of the disputed land under Section 146 of the Code as perverse and bad in law seriously contended that when a proceeding under Chhotanagpur Tenancy Act for restoration of land in dispute was pending before a competent authority, the conversion of proceeding under Section 144 of the Code to a proceeding under Section 145 of the Code and attachment of property was uncalled for and not sustainable in the eye of law. It was also submitted that the orders passed by the L.R.D.C. and the appellate court were all stayed by the Commissioner of North Chhotanagpur Division, Hazaribagh, hence attachment of property in dispute and conversion of the proceeding under Section 146 of the Code was not permissible. Even if there was apprehension of breach of peace between the parties in respect of possession of the land in dispute, at best a proceeding under Section 144 of the Code can be initiated but the same cannot be converted under Section 145 of the Code. Even if there was apprehension of breach of peace between the parties in respect of possession of the land in dispute, at best a proceeding under Section 144 of the Code can be initiated but the same cannot be converted under Section 145 of the Code. Learned counsel in support of his contention placed reliance on a case Amresh Tiwari vs. Lalta Prasad Dubey and Another, (2000) 4 SCC 440 wherein it has been held that when possession is being examined by the civil court and the parties are in a position to approach the civil court for adequate protection of the property during pendency of the dispute, the parallel proceeding under Section 145 should not continue. 4. Contrary to the aforesaid submissions, learned counsel Mr. Anoop Kumar Mehta appearing for the opposite party no. 3 contended that merely because a suit is pending does not mean that proceeding under Section 145 of the Code should be set at naught. It was also submitted that though the power of a Civil Court under this Chhotanagpur Tenancy Act is given to a competent authority and the case for restoration of land in dispute filed by the opposite party no. 3 was allowed in his favour by original court as well as by the appellate court but as there was apprehension of breach of peace between the parties, the proceeding in question was initiated suo moto at the instance of the Sub-Divisional Magistrate. Hence, the court has not committed any error and in such situation, a parallel proceeding is no bar under Section 145 of the Code, which is only preventive in nature. 5. Before appreciating the rival submissions advanced by the learned counsel for the parties, it would be appropriate to mention that the civil courts have no jurisdiction to entertain a suit within the territorial jurisdiction where Chhotanagpur Tenancy Act is applicable as power of the civil court has been given to different authorities under the Act. If there is any dispute with regard to title or possession between the parties, the proper authorities under the CNT Act has the power to resolve the dispute and to declare the title and restore the possession of the parties. In the instant case, as I have stated in preceding paragraph that the opposite party no. If there is any dispute with regard to title or possession between the parties, the proper authorities under the CNT Act has the power to resolve the dispute and to declare the title and restore the possession of the parties. In the instant case, as I have stated in preceding paragraph that the opposite party no. 3 filed a suit under CNT Act before L.R.D.C. Tenughat for restoration of the land in his favour. After notice and hearing both the parties, the authority decided the matter in favour of the present opposite party no. 3. Whereafter the petitioner preferred an appeal, which was dismissed but on filing revision before the Commissioner, North Chhotanagpur Division, the revisional court stayed the orders passed by both the courts below. So the order passed by any authority under the CNT Act has the same force as that of any judgment passed by a competent civil court. 6. It is well settled that when a civil suit for title and possession with respect to the disputed land is pending before a competent civil court, no proceeding under Section 145 of the Code for any portion of the disputed land can proceed. Similarly, no order under Section 146(1) for attachment of the land in dispute could be passed while the matter was pending before the competent civil court for adjudication of the title and possession. 7. In the case Amresh Tiwari (supra) a similar issue was involved wherein during pendency of the suit before a civil court, a proceeding under Section 144 of the Code was initiated, which was later on converted into Section 145 of the Code, the Hon'ble Supreme Court in paragraph 14 held as follows:- "14. Reliance has been placed on the case of Jhummamal vs. State of M.P. It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145 of the Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145 of the Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 of the Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An order of status quo had already been passed by the competent civil court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumer Case fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate." 8. From bare perusal of the mandates given in the aforesaid judgment, it is clear that in every case where a civil suit is filed, it is not necessary that Section 145 proceeding would never lie but where in a suit or in any equivalent proceeding, the dispute is with regard to the title and possession of the parties and where reliefs regarding protection of the property can be applied for, the proceeding under Section 145 of the Code should not be allowed to continue. In the instant case, the competent authority either L.R.D.C. or appellate court or the highest court under the CNT Act i.e. the revisional court has every power as that of a civil court to declare the title and possession of the parties, the continuation of the proceeding under Section 145 of the Code and the subsequent orders of attachment of property under Section 146(1) of the Code cannot sustain in the eye of law. At best, if there is every apprehension of breach of peace between the parties, a proceeding under Section 144 of the Code can be initiated, which is preventive in nature but the same cannot be converted into a proceeding under Section 145 of the Code where a Magistrate is under obligation to declare the possession of a party. Otherwise continuation of a proceeding before S.D.M. under Section 145 of the Code would amount to initiation of a parallel proceeding. Multiplicity of the litigation is not in the interest of the parties nor it should be allowed to be continued. 9. In view of the above discussion, the order dated 15.2.2008 passed by the Sub-Divisional Magistrate, Bermo at Tenughat for initiation of the proceeding and the subsequent orders of converting the same proceeding under Section 145 of the Code and attachment of the property and appointment of the officer-in-charge of the concerned police station as custodian of the property in dispute are all, hereby, set aside. 10. In the result, the criminal miscellaneous petition is, hereby, allowed. However, if the learned S.D.M. Bermo at Tenughat at any stage finds apprehension of breach of peace between the parties or at the instance of any party, if any petition is filed, can initiate a fresh proceeding under Section 144 of the Code.