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2019 DIGILAW 2802 (ALL)

Lalita Devi v. State of U. P.

2019-12-18

MANJU RANI CHAUHAN

body2019
JUDGMENT : 1. Heard Mr. Ajay Sengar, learned counsel for the petitioner and learned A.G.A. for the State. 2. The present petition under Article 227 of the Constitution of India has been filed to quash the order dated 1st April, 2019 passed by the City Magistrate, Paragana-Orai, Jalaun at Orai in Case No. 02 of 2018 (Smt. Lalita Devi Vs. Veni Madhav & Others), under Section 145 Cr.P.C., Kotwali- Orai, District-Jalaun as well as the order dated 13th September, 2019 passed by the Additional Sessions Judge/Special Judge (E.C.Act), Jalaun at Orai in Criminal Revision No. 49 of 2019 (Smt. Lalita Devi Vs. Veni Madhav & Others), under Section 397 Cr.P.C., Police Station-Kotwali, District-Jalaun. 3. Learned counsel for the petitioner and the learned A.G.A. agree that this application may be finally disposed of without issuing notice to opposite party no.2 in view of the order proposed to be passed today. Normally, this Court would have issued notices to opposite party no.2 to file counter affidavit but no purpose would be served by keeping the present application pending. However, it shall be open for opposite party no.2 to file recall application against this order, if he feels so aggrieved. 4. Under the order impugned dated 1st April, 2019, order/notice dated 17th October, 2018 under Section 145 (1) Cr.P.C. directing the parties to maintain status quo passed on the application filed by the applicant, has been quashed, which has also been affirmed by the revisional court under the order impugned dated 13th September, 2019. 5. According to the learned counsel for the petitioner, the brief facts are as follows: Respondent no.3, namely Komal Yadav being owner of plot measuring 20 x 40 fee, situated at Churkhi Road, Pargana and Tehsil-Orai, District-Jalaun at Orai, had offered the said land to the petitioner on a reasonable rate i.e. Rs. 2,00,000/- lacs. Petitioner accepted the said proposal and paid Rs. 2,00,000/- to respondent no.3 for purchasing of the said land as sale consideration with the assurance that the possession shall be handed over immediately but the registered sale-deed will be executed in favour of the petitioner in the year 2016. According to the said deal, the petitioner after paying Rs. 2,00,000/- to respondent no.2, has taken possession over the plot in dispute and now she is still in possession over the said plot. According to the said deal, the petitioner after paying Rs. 2,00,000/- to respondent no.2, has taken possession over the plot in dispute and now she is still in possession over the said plot. Thereafter the petitioner has requested respondent no.3 to execute the sale-deed in favour of the petitioner as per the assurance given by her, but respondent no.3 has avoided the request of the petitioner and has not executed the registered sale deed even after expiry of a period of three years. On 16th October, 2018, respondent no.2, namely, Beni Madhav came and wanted to take possession over the plot in dispute. The petitioner contacted respondent no.3 about the same but respondent no.3 did not respond to her properly. Thereafter the petitioner has also immediately moved written complaint to the Station House Officer, Kotwali-Orai, District-Jalaun and City Magistrate, Jalaun at Orai on 17th October, 2018. Upon the said written complaint of the petitioner, the City Magistrate, Jalaun at Orai vide order dated 17th October, 2018 initiated proceedings under Section 145 (1) Cr.P.C. and directed to maintain status quo issuing notice to respondent nos. 2 and 3and fixing 31st October, 2018. On the notice being received, respondent nos. 2 and 3 filed their written objections on 15th November, 2018 stating therein that petitioner has no concern with the aforesaid plot and neither respondent no.3 has ever taken any consideration from the petitioner nor assured her to execute any sale-deed qua the plot in dispute. On the objections filed by respondent nos. 2 and 3, the City Magistrate under the order dated 28th October, 2018 has dropped the proceedings initiated under Section 145 (1) Cr.P.C. and has also recalled the earlier order directing the parties to maintain status quo. Feeling aggrieved by the said order of the City Magistrate dropping the proceedings initiated under Section 145 (1) Cr.P.C., the petitioner has preferred Criminal Revision No. 49 of 2019 (Smt. Lalita Devi Vs. Veni Madhav & Others) under Section 397 Cr.P.C. The learned Additional Sessions Judge/Special Judge (E.C. Act), Jalaun at Orai has rejected the criminal revision under the order dated 13th September, 2019. It is against these two orders that the present petition under Article 227 of the Constitution of India has been filed. 6. Veni Madhav & Others) under Section 397 Cr.P.C. The learned Additional Sessions Judge/Special Judge (E.C. Act), Jalaun at Orai has rejected the criminal revision under the order dated 13th September, 2019. It is against these two orders that the present petition under Article 227 of the Constitution of India has been filed. 6. Learned counsel for the petitioner submits that both the courts below have committed manifest error in law determining the ownership of the land in dispute while passing the impugned orders. Both the courts below have also exercised their powers beyond the scope of provisions under Sections 145 and 145 (1) Cr.P.C. and have wrongly rejected the claim of the petitioner. It is an admitted case that the petitioner was in possession over the plot since 2016 but the courts below have wrongly determined the possession of the respondent nos. 2 and 3. Under the orders impugned the findings recorded therein are perverse and wrongly determined that there is the apprehension among the parties regarding the land in dispute. The petitioner is in possession over the plot in dispute and she cannot be evicted by the private respondents beyond the procedure known to law. It is further submitted that the respondent nos. 2 and 3 have no legal right or title to claim that they are the owners of the plot in dispute. It is further submitted that both the courts below only on the basis of apprehension has recorded a finding that respondent no.3 has title and is in rightful possession over the plot in question and the petitioner is not in possession over the same. Learned counsel for the petitioner, therefore, submits that both the impugned orders are to be set aside. 7. I have considered the submissions of the learned counsel for the applicant and the learned A.G.A. for the State and have gone through the records of the present application as well as the impugned orders. 8. Before adverting on the merits of the case set up by the parties, it would be worthwhile to reproduce Sections 145 Cr.P.C., which is quoted herein below: "145. Procedure where dispute concerning land or water is likely to cause breach of peace. 8. Before adverting on the merits of the case set up by the parties, it would be worthwhile to reproduce Sections 145 Cr.P.C., which is quoted herein below: "145. Procedure where dispute concerning land or water is likely to cause breach of peace. (1) 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. (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, (4) The Magistrate shall then, without, reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, 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: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub- section (1). (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 subsection (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub- section (4) be treated as being, in such possession of the said 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 proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub- section shall be served and published in the manner laid down in sub- section (3). (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 purposes 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 Magistrate to proceed under section 107." 9. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107." 9. Section 145 (1), Criminal Procedure Code, provides that the Magistrate having jurisdiction shall make an order in writing that he is satisfied either from a police report or other information that a dispute likely to cause a breach of the peace exists and state the grounds of his satisfaction before requiring the parties concerned in such dispute to attend his Court and put in written statements. This provision of making the order in writing and stating the grounds of his satisfaction appears to be mandatory. The words "shall make an order in writing stating the grounds of his being so satisfied" would clearly indicate that the order must be in writing and the grounds for satisfaction also must be stated. Unless the grounds are stated in the order itself, it will be difficult to test the correctness or otherwise of the order passed by the Magistrate. So, the preliminary order should state clearly the reasons and grounds on which the satisfaction is based and that the Magistrate had applied his mind in passing the preliminary order. 10. On a careful reading of section 145 as a whole, particularly subsection (1) it can be seen that every foundation of an action under the sub-section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction. It is only on being satisfied that there is a real dispute existing concerning the possession of immovable property and that such dispute is likely to cause the breach of peace that the Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order under section 145 of the Code. This satisfaction he or she may get from a report of the police officer or upon other information. The Magistrate must be satisfied of the necessity to take action under section 145 of the Code, before a. preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the police officer or upon other information. The Magistrate must be satisfied of the necessity to take action under section 145 of the Code, before a. preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the police officer or upon other information. The provision in the Sub-section that the Magistrate shall make an order in writing, slating the grounds of his satisfaction is mandatory. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order. 11. From the perusal of the aforesaid provisions and the orders impugned, this Court finds that the City Magistrate on the basis of presumption has rejected the claim of the applicant that she is in possession over the plot in dispute and has accepted the objections filed by respondent nos. 2 and 3. Neither the City Magistrate has called for any police report regarding spot inspection of the plot in dispute nor has obtained other information as is required under the provisions of Section 145 Cr.P.C. 12. For the reasons aforesaid, this Court is of the view that the learned Magistrate had not applied his mind while passing the order dated 1st April, 2019 in that the learned Magistrate has not considered the claim of the applicant as required by sub-sections (1) and (4) of Section 145. The same mistake has also been committed by the revisional court in its order dated 13th September, 2019. 13. In view of the aforesaid, the impugned orders dated 1st April, 2019 and 13th September, 2019 cannot be legally sustained and are hereby quashed. The matter is remanded to the City Magistrate concerned to pass reasoned and speaking order afresh in the proceeding initiated under Section 145 (1) Cr.P.C. after affording opportunity of hearing to all the parties concerned in accordance with law. 14. The present application is allowed subject to the observations made above.