Syed Abdul Rub v. Shanti Agarwal — 2019 DIGILAW 2025 (SC)

ORDER : C.A. No. 7640/2019 and SLP (C) No. 15526/2017 1. Leave granted. 2. This appeal arises out of the judgment dated 25.04.2017 passed in Writ Petition No. 8928 of 2011 by the High Court of Judicature at Hyderabad. By the impugned order, the High Court has directed the implementation of the order dated 28.02.2011 passed by the Special Executive Magistrate-cum-District Collector, Hyderabad in M.C. No. B/397/2010 under Section 146 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) attaching the property in Survey No. 284/6 situated at Malkapur Village, Taluq West, District Atraf Balda, Telangana forthwith. 3. The records reveal that in light of serious land disputes between the parties, proceedings under Section 145, Cr.P.C. were initiated before the Special Executive Magistrate-cum- District Collector, Hyderabad in M.C. No. B/397/2010 in M.C. No. B-180/78. The Special Executive Magistrate-cum-District Collector, Hyderabad passed an order on 25.08.2010 calling for an enquiry report from the Sub-Inspector of Police, Tappachabutra Police Station, Hyderabad to determine the status of the disputed land, including any law and order problem prevailing at the disputed site. Questioning the said order dated 25.08.2010, the appellants herein approached the High Court by filing Criminal Revision Case No. 2018 of 2010, which came to be disposed of on 11.02.2011, quashing the proceedings under Section 145, Cr.P.C. While quashing the proceedings, a statement of the advocate for the respondents to the effect that separate proceedings had already been initiated in M.C. No. B/397/2010 was also recorded. S.L.P. (Crl.) No. 6395 of 2011 against such order of the High Court in Criminal Revision No. 2018 of 2010 was disposed of by this Court as withdrawn, on 20.07.2012. Thus, it is clear that the proceedings under Section 145 Cr.P.C. were quashed and no order was passed in favour of the respondents. Such being the position, curiously, the Special Executive Magistrate-cum-District Collector, Hyderabad passed an order of attachment of the property in question under Section 146, Cr.P.C. on 28.02.2011 in M.C. No. B/397/2010. 4. The respondents herein filed Writ Petition No. 8928 of 2011 before the High Court for issuing a writ of mandamus directing the concerned authorities to implement the attachment order passed under Section 146, Cr.P.C. dated 28.02.2011 passed by the Special Executive Magistrate-cum-District Collector, Hyderabad attaching the property in question (supra). The writ petition was allowed by the impugned order. 4. The respondents herein filed Writ Petition No. 8928 of 2011 before the High Court for issuing a writ of mandamus directing the concerned authorities to implement the attachment order passed under Section 146, Cr.P.C. dated 28.02.2011 passed by the Special Executive Magistrate-cum-District Collector, Hyderabad attaching the property in question (supra). The writ petition was allowed by the impugned order. At this juncture, it may be noted that Section 145 and 146, Cr.P.C. pertain to disputes over any land or water or the boundaries thereof, likely to cause a breach of peace. Section 145(1), Cr.P.C. provides as follows: “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.” 5. Attachment of the disputed property may only be ordered under Section 146(1), Cr.P.C. in the following terms: “If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.” (Emphasis added) 6. Therefore, it is evident that attachment under Section 146(1), Cr.P.C. can only be proceeded with after an order has been passed under Section 145(1), Cr.P.C. The order dated 28.02.2011 passed by the Special Executive Magistrate-cum-District Collector, Hyderabad in M.C. No. B/397/2010 was thus without any basis, since it was passed without initiation of fresh proceedings under Section 145, Cr.P.C. It appears that the attachment order dated 28.02.2011 was passed under Section 146(1), Cr.P.C. on the presumption that proceedings under Section 145, Cr.P.C. were pending, which in fact had not been freshly initiated. Thus, the order dated 28.02.2011 passed under Section 146(1), Cr.P.C. is not only illegal but also void and cannot be executed. In such a situation, the High Court was not justified in issuing a writ of mandamus directing the concerned authorities to execute such order. Accordingly, the impugned order passed by the High Court in Writ Petition No. 8928 of 2011 stands quashed. The appeal is, accordingly, allowed. 7. It is open for the parties to pursue any other remedy available in law. CONTEMPT PETITION (C) NO. 113/2019 in C.A. NO........./2019 and SLP (C) NO. 15526/2017 8. In view of the order passed in the civil appeal arising out of SLP (C) No. 15526/2017, the contempt petition has become infructuous. The contempt petition is, accordingly, dismissed.