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2018 DIGILAW 842 (JK)

Rahmatullah v. Mohd. Ashraf

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant criminal revision filed under Section 435 Cr.P.C., the petitioner inter alia seeks setting aside of order dated 25.07.2016 passed by respondent No.3-Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Ramban whereby withdrawing the proceedings pursued under Section 145 Cr.P.C. without giving any opportunity of being heard to the applicant therein to produce the evidence with respect to the fact of possession of the subject of dispute. 2. The case of the petitioner is that the petitioner is the owner in possession of land comprising Khasra Nos. 150 and 159 measuring 12 kanals 5 marlas and 13 marlas respectively situated in village Bohardar, Tehsil Banihal. It is stated that the possession of one half of the aforesaid land was handed over to the petitioner on 10.12.2015 in the presence of the then Tehsildar Banihal and the petitioner is in exclusive possession of the aforesaid land since then. On 26.04.2016, the respondent Nos.1 & 2 threatened the petitioner to forcibly occupy the share of the petitioner and on 16.05.2016 the petitioner presented an application under Section 145 of Cr.P.C. before the learned Court of Additional Deputy Commissioner (with the powers of Agrarian Commissioner), Ramban, respondent No.3 herein, to initiate the proceedings under Section 145 and protect the interest of the petitioner in the aforesaid land. It is also stated that pursuant to the application of the petitioner, the respondent No.3 directed the SHO Police Station Banihal to produce the non-applicants therein before his court on 07.06.2016, but the non-applicants therein did not appear before the court, thereafter on 11.06.2016, the respondent No.3 directed the Tehsildar Banihal to initiate action, under Section 145 Cr.P.C., in presence of both the parties on spot. Pursuant to the directions passed by respondent No.3, respondent No.4 instead of personally proceeding on spot, directed Niab Tehsildar Banihal to report in the matter. Pursuant to the order of respondent No.4, respondent No.5 recorded the statements of non-applicants and their witnesses who have enmity with the petitioner. Respondent No.5 did not give any opportunity to the petitioner to produce the witnesses in support of his claim of having possession over the subject of dispute. Respondent No.5 also refused to record the statements of the Chowkidar and other witnesses of the village and prepared the report without identifying the subject of dispute and fact of possession of the subject matter. Respondent No.5 also refused to record the statements of the Chowkidar and other witnesses of the village and prepared the report without identifying the subject of dispute and fact of possession of the subject matter. It is also stated that respondent No.5 though recorded the statements of some persons jointly but none of them has stated as to who was in possession of the subject of dispute on the relevant date. The respondent No.4 relying on the report of respondent No.5, submitted his report to respondent No.3 vide order dated 22.07.2016 and respondent No.3 solely relied on the report of respondent No.4 passed the final order on 25.07.2016 thereby withdrawing the proceedings pursued under Section 145 Cr.P.C. without giving any opportunity of being heard to the applicant therein to produce the evidence with respect to the possession of the subject of dispute. 3. The petitioner being aggrieved of the said order, seeks setting aside of the same on the following grounds : (a) That the impugned order is liable to be set aside on the ground the respondent No.3 has passed the same without affording an opportunity of being heard to the petitioner. Neither respondent No.4 nor respondent No.3 provided the petitioner any opportunity to produce his evidence qua his possession over the subject of dispute. (b) That the respondent No.5 recorded the statements of the witnesses produced by the non-applicants therein. Though, the petitioner produced the witnesses to support his claim of having possession on the subject of dispute, but the respondent No.5 refused to record the statements of the witnesses produced by the petitioner. Respondent No.4 also did not provide the petitioner any opportunity to produce his evidence. (c) That respondent No.3 passed the impugned order without affording an opportunity to lead his evidence qua the possession of subject of dispute and pass he impugned order in absence of the petitioner on 25.07.2016 without informing the petitioner and his counsel, no notice was issued to the petitioner before passing the order impugned. (d) That the impugned order is liable to be quashed on the ground that no finding has been rendered qua the possession of subject of dispute. The report submitted by respondent No.5 and the statements of the witnesses produced by the non-applicants therein are silent about the fact of possession of subject matter. (d) That the impugned order is liable to be quashed on the ground that no finding has been rendered qua the possession of subject of dispute. The report submitted by respondent No.5 and the statements of the witnesses produced by the non-applicants therein are silent about the fact of possession of subject matter. No identification of the subject matter has been made in the report as such the impugned order is illegal has been passed without application of judicial mind and against the mandate of Section 145 CrPC. The impugned order is against the principle of natural justice, and voilative of provisions of sub-section 4 of Section 145 CrPC. Thus, liable to be quashed/set aside. 4. Objections on behalf of respondent Nos.4 & 5 have been filed, wherein it has been stated that the petitioner is share holder in khasra no.150 as per revenue record. It is stated that no proof of handing over the possession of land in presence of answering respondent No.4 i.e., Tehsildar Banihal on 10.12.2016 is available with the case or in office copy file lying with his office. The order under Section 145 Cr.P.C. has been passed on 16.03.2016 by the Additional Deputy Commissioner, Ramban. It is further stated that the SHO Police Station, Banihal was directed by the Additional Deputy Commissioner, Ramban to direct the non-applicant to present before his Court vide order dated 11.06.2016, for initiating action. The Tehsildar Banihal visited the spot and directed the Naib Tehsildar, Chamalwas for report vide order dated 23.06.2016. The Naib Tehsildar Chamalwas proceeded on spot and recorded statements of locals and non-applicants and submitted the detailed report vide order dated 21.07.2018 and the Tehsildar Banihal submitted the report to the Additional Deputy Commissioner, Ramban on 22.07.2016. It is further stated that on the basis of both the reports of Tehsildar Banihal and Naib Tehsildar Chamalwas, the Additional Deputy Commissioner Ramban has withdrawn the order under Section 145 CrPC on 25.07.2016. It is prayed that the petition of the petitioner may kindly be dismissed with costs. 5. Heard learned counsel for the petitioners and gone through the law on the subject. 6. Section 145 Cr.P.C. reads as under :- “145. Procedure where dispute concerning land etc. It is prayed that the petition of the petitioner may kindly be dismissed with costs. 5. Heard learned counsel for the petitioners and gone through the law on the subject. 6. Section 145 Cr.P.C. reads as under :- “145. Procedure where dispute concerning land etc. is likely to cause breach of peace.- (1) Whenever a Chief Judicial Magistrate, or any other Judicial Magistrate of the first class is satisfied from police report or 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 limits of his 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 within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute *[and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims]: [Provided that where the disputes likely to cause a breach of peace concerns any land as defined in the (Jammu and Kashmir Agrarian Reforms Act, 1976) the powers under this Section shall be exercisable only by the District Magistrate of the first class]. (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) Inquiry as to possession.- The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject : Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein : Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date : Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this Section]. (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 (I) shall be final. (6) Party in possession to retain possession until legally evicted- If the Magistrate decides that one of the parties was or should under the *[second proviso] to sub-Section (4) be treated as being in such possession of the subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the [second proviso] to sub-Section (4), may restore to possession the party forcibly and wrongfully dispossessed. (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, and if any question arises as to who the legal representative of a deceased party for the purpose 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 Executive Magistrate] to proceed under Section 107.” 7. The object of Section 145 Cr.P.C. is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession, and not for evicting any person from possession. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute. The scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute. Section 145 Cr.P.C. relates to Magistrate’s powers where the breach of peace is likely to be caused due to a dispute concerning possession or right to use land or water or its boundaries. He is not to decide the questions of title, but should only endeavor to avert a situation of breach of peace by maintaining the party in possession. He should call upon the parties to submit their written statements in support of their claim to actual possession and on the basis of such statements decide as to who was in actual possession after hearing the parties and weighing the evidence. His decision on point of possession should be well reasoned and recorded in writing. In case of wrongful dispossession, the party so dispossessed is to be deemed as the party in possession. 8. It must be stated that the action taken under this section being purely preventive and provisional in nature, the order passed by Magistrate is not of a punitive character. It, therefore, follows that an application made to a Magistrate under Section 145 is not a complaint as it does not relate to an offence. The Magistrate is empowered to initiate proceedings under this section upon a report of a police officer but such proceedings shall be only for a limited purpose for satisfying himself as to the likelihood of breach of peace and the identity of subject matter of dispute. 9. The Executive Magistrate before making a preliminary order under Section 145 must satisfy himself that the dispute relates to land or other objects mentioned in sub-section (1) and it is likely to cause a breach of peace. Sub-section (4) provides that the inquiry under Section 145 is limited only to the question of actual possession on the relevant date and is not concerned with the claims and titles of the parties as regards right to possession. 10. Where the Magistrate is satisfied that the cause of apprehension of breach of peace, in fact, it never existed, then in such cases he shall pass an order dropping the proceedings, and release of the property which was in dispute. 10. Where the Magistrate is satisfied that the cause of apprehension of breach of peace, in fact, it never existed, then in such cases he shall pass an order dropping the proceedings, and release of the property which was in dispute. But mere existence of a dispute between private parties will not invoke jurisdiction under Section 145 unless the Magistrate is satisfied that such private dispute is also likely to cause disturbance of peace and public tranquillity. 11. In present case, as per petitioner he moved a petition on 16.05.2016 under Section 145 of Cr.P.C. before the learned Court of Additional Deputy Commissioner (with the powers of Agrarian Commissioner), Ramban, vide annexure-A. But annexure-A is an application filed under section 145 Cr.P.C. before CJM Ramban, that too dated 26.4.2016; its para 4 reads as under :- “That applicant was handed over the possession by non applicants and now the non applicants are interfering in the possession of applicant and there is every reasonable apprehension that breach of peace may occur.” 12. From bare perusal of this para, it is evident that there is no date, time, month and year has been mentioned with regard to handing over of possession of land and apprehension of breach of peace; Cryptic averments have been made. Further Annexure-B reveals that order on petition u/s 145 Cr.P.C. has been passed on 11.6.2016 by Additional Deputy Commissioner, Ramban, thereby directing the Tehsildar concerned to initiate action under provision of section 145 Cr.P.C. and report; Tehsildar accordingly issued notices to parties and SHO concerned; after conducting inquiry, Tehsildar concluded that there is no apprehension of breach of peace. On this report Additional Deputy Commissioner dismissed the application and withdrawn the order, on 25.7.2016. 13. From bare perusal of communication of Additional Deputy Commissioner, Ramban, dated 14.12.2016 sent to the High Court and objections filed by respondents, it is evident that Tehsildar/N. Tehsildar conducted detail inquiry; for that purpose N. Tehsildar visited on spot and recorded the statements of inhabitants and then came to conclusion that there was neither any dispute of possession of land nor there is apprehension of breach of peace. 14. 14. In view of above, when there was neither any dispute with regard to possession of land under dispute between parties nor there was any apprehension of breach of peace on spot, the order impugned is correct and does not suffer from any infirmity of law. This petition is dismissed.