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2018 DIGILAW 47 (MEG)

Malati Das Alias Maloti Dey v. Carmel Makri

2018-08-10

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. Aggrieved by the order dated 01.05.2018 passed in C.T. Case No.1 of 2016 by the Executive Magistrate, Ri Bhoi District, Nongpoh, instant petition has been filed. 2. It is the contention of the learned counsel for the petitioner that the learned Magistrate had to address the issue of possession under proceedings initiated under Section 145 Cr.P.C., 1973 but in terms of the order dated 01.05.2018 in effect he has decided the title of the land even though order is interlocutory but the rights of the parties have been decided. 3. Copy of the record of the case submitted by the learned Executive Magistrate, reveals that the provisions of Section 145 Cr.P.C., 1973 have been observed in breach, orders passed from time to time are inconsistent with the mandate of Section 145 Cr.P.C., 1973 as such arbitrary exercise of the power. 4. In the application as filed by the petitioner before the learned Magistrate, it had been projected that she has been in possession of a plot of land located at Byrnihat Proper, Ri Bhoi District, Meghalaya for more than six Serial No. 03 Regular List decades. On 16.09.2016 she had received a letter asking her to appear at the residence of Shri Carmel Makri and Santina Makri to arrange the tenancy issue. On 01.08.2015, two unknown persons entered the petitioner's house and threatened her on the issue of landed property, as a result whereof, her eldest son Shri Parimal Kr. Das lodged a complaint before the Headman. On 24.09.2016 at about 6.30 p.m. a truck loaded with stone boulders was brought by the unknown party and unloaded in the premises i.e., at the entrance of her house then, again, on 26.09.2016 at about 10.30 a.m. another loaded truck was brought by the opposite party as a result of which, she informed the Village Executive Members and the In-charge of Byrnihat Out Post, the said truck was taken by the police to the concerned Police Out Post. The intention of Shri Carmel Makri and Santina Makri is to cause breach of peace and to disturb the possession. 5. On receiving the application, the learned Additional District Magistrate recorded the first order on 04.10.2016, in terms whereof, the case has been assigned to the Executive Magistrate for disposal. The intention of Shri Carmel Makri and Santina Makri is to cause breach of peace and to disturb the possession. 5. On receiving the application, the learned Additional District Magistrate recorded the first order on 04.10.2016, in terms whereof, the case has been assigned to the Executive Magistrate for disposal. The learned Executive Magistrate vide order dated 21.10.2016 has observed that before proceedings under Section 145 Cr.P.C., 1973 are drawn, in-charge Byrnihat Police Out Post to conduct the inquiry into the matter and to ascertain as to whether there is apprehension of any breach of peace and to submit his report. In compliance whereof, the report has been submitted by the Police mentioning therein that the case may be instituted only under Section 107 Cr.P.C., 1973 and not under Section 145 Cr.P.C., 1973 Thereafter, the Magistrate has directed both the parties to appear in the court and to submit their written statements so as to enable him to proceed further. Various interim orders have been recorded but vide order impugned dated 01.05.2018 has concluded as under: "(1) The 1st party should immediately stop any construction activities in the mentioned land. (2) The 2nd party to maintain status-Quo until further order. (3) The Headman, Byrnihat Proper to clarify what rules/law empower them to give land to the non-tribal without State Government's Notification. (4) The Secretary, KHADC to explain as to whether nontribal can possess land in Byrnihat Proper, Ri Bhoi District. (5) The I/c Byrnihat Police Out Post to ensure that both parties adhere to this instant order." 6. The proceedings recorded by the learned Executive Magistrate clearly indicate that the procedure prescribed under Section 145 Cr.P.C., 1973 has not been followed at all. (a) In terms of Section 145 (1) Cr.P.C., 1973 the learned Executive Magistrate had to derive satisfaction from a report of a police officer or upon other information and had to state grounds of his being satisfied that the dispute is likely to cause breach of peace concerning the land within his jurisdiction then, he was required to ask the parties concerned to attend the court in person or by a pleader and to put written statements of their respective pleas regarding actual possession of the subject of dispute. The copy of the order had to be served in a manner as provided by the code for the service of summon upon such person and at least one copy had to be published by being affixed at some conspicuous place at or near the subject of dispute. (b) The Magistrate has not drawn the order under Section 145 (1) Cr.P.C., 1973 at all. (c) Sub-section 4 of 145 Cr.P.C., 1973 enjoins the Magistrate that without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, shall peruse the statements, hear the parties, receive all evidence as may be produced and to 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. (d) The proviso to Sub-Section 4 also enjoins that if there has been forcible or wrongfully dispossession within two months next before the date on which the report of a police officer or other information was received or after the date and before the date of his order under Section 145 (1) Cr.P.C., 1973 he may treat the party so dispossessed as if that party had been in possession on the date of his order under Section 145 (1) Cr.P.C., 1973;. 7. The proceedings as recorded by the learned Executive Magistrate nowhere indicate that he had derived any satisfaction regarding existence of breach of peace concerning the land in question nor he has drawn the order under Section 145 (1) Cr.P.C., 1973 Section 145 (4) Cr.P.C., 1973 has also been observed in breach because in terms whereof, the Magistrate without reference to the merits or rights of the party to possess has simply to ascertain as to which party was in actual physical possession of the land and also to ascertain, if there has been any dispossession within two months next before the date on which report of the police or any other report was received. 8. The application which was submitted by the petitioner was considered but no satisfaction was recorded, however, police had been directed to conduct the enquiry, thereafter, simply a notice was issued for appearance of the opposite party. 8. The application which was submitted by the petitioner was considered but no satisfaction was recorded, however, police had been directed to conduct the enquiry, thereafter, simply a notice was issued for appearance of the opposite party. Police had submitted the report with a request that the case under Section 107 Cr.P.C., 1973 may be registered and not under Section 145 Cr.P.C., 1973 It was for the Magistrate to derive satisfaction on the basis of the report regarding apprehension of the breach of peace ad record in writing the grounds for being satisfied which he has not, instead asked the parties to submit their respective statements. 9. The Magistrate while proceeding further has in terms of the order impugned dated 01.05.2018 which though shown interlocutory, but in effect has determined the rights of the parties as such, has the trappings of a final order, that being so, the revision petition is maintainable. 10. It has to be emphasised that the object of Section 145 Cr.P.C., 1973 is to save a particular situation vis-a-vis land etc. i.e., when there is apprehension of breach of peace, the Magistrate has simply to ascertain the physical possession of land without reference to the title or right to posses, same has totally escaped the attention of the learned Magistrate or otherwise the Magistrate has not been aware about the mandate of Section 145 Cr.P.C., 1973 11. Application has been filed by the petitioner in the year 2016. Now regarding the subject matter, it is not known as to whether from 2016 till date, there has been any report about the existence of breach of peace. For three years proceedings have been continued which is contrary to the object of Section 145 Cr.P.C., 1973 Section 145 Cr.P.C., 1973 in effect, is a provision to be invoked for preventing breach of peace concerning land and to save possession of the person who hold it, but once the question of possession is established then, the person in possession has to be protected against any intrusion. The proceedings initiated by the Magistrate right from the beginning are totally inconsistent with the procedure as prescribed under Section 145 Cr.P.C., 1973 The manner the learned Magistrate has proceeded is totally in contravention to the object of Section 145 Cr.P.C., 1973 Therefore, the entire proceedings as recorded by the learned Magistrate right from 21.10.2016 till date are dehors the law. 12. 12. Both learned counsel for the parties would submit that as on date breach of peace does not exist, when it is so, there is no requirement to continue with the proceedings under Section 145 Cr.P.C., 1973 In case any such dispute arises in future threatening breach of peace, it shall be open for the parties to invoke jurisdiction of the Magistrate under Section 145 Cr.P.C., 1973 or otherwise also it shall be open to the Magistrate to invoke powers in case any report from the police regarding breach of peace concerning the land (subject matter of the application) is received. 13. Petition is allowed, the proceedings under Section 145 Cr.P.C., 1973 which are pending before the learned Executive Magistrate from the year 2016 do not survive for any consideration as on date, therefore, all the proceedings so initiated including the order impugned dated 01.05.2018 are quashed. Proceedings accordingly are directed to be closed. 14. It is made clear that the aforesaid observations shall remain confined to the disposal of this petition and shall be without any prejudice to the other respective rights of the parties. 15. Petition disposed of as above. Copy of the order be sent to the learned Executive Magistrate for information.