P.S. Safeer, J.
(1) This revision petition is in consequences of a report submitted by Shri J. D.Jain. Additional Sessions Judge, Delhi, under Section 438 of the Criminal Procedure Code, recom- mending that the order dated the 20th of July 1970, passed by Miss Rewa Lal, S.D.M. Delhi, be quashed and that Munshi Ram, who was the petitioner before him, be declared as having been in possession of the land in dispute on the date when the preliminary order under section 145(1) of the Criminal Procedure Code (hereinafter called 'the Code'') was passed and within two months preceding that date.
(2) Shri Ram Kishan, A.S.I. Kalkaji submitted a report dated the 5th of October, 1968, to the S D.M. of the area detailing the allegations made by Shri R G. Anand and stating that there was apprehension of breach of peace between the parties on account of a dispute concerning agricultural land. The S.D Ml dealing with the report passed two orders Ob 10th of October, 1968, which are:-
'CALLboth the parties under section 145 Criminal Procedure Code for 14th October, 1968. (sd/-) 10th October, 1968 Since it is reported that the case is one of emergency the Said prooerty is to be attached pending decision under Section 143 Cr. P.C (sd/-) 10th October, 1968 '
Notices were issued both to Munshi Ram as well as R. G. Anand and Munshi Ram appeared before the S. D. M. on 14th October, 1908. R G. Anand was not present in spite of service and it was directed that bailable warrants be issued in the sum of Rs. 2,000.00 in order to secure his presence. In the course of the proceedings under section 145 of the Code intiated in terms of the order, quoted above, the parties placed reliance on the affidavits and the documents filed by them It had been reported that R. G Anand had purchased 19 bighas and 14 bids was of agricultural land comprised in khasra Nos. 2212/1051, 1935/1059, 1936/1059, 1067, 2087/1076 and 2167/1523 situated in village lughlakabad. and had obtained its possession on 20th August, 1968, from one Shri Shiban. The land in dispute was concerned in the litigation going on between the vendor and Munshi Ram. The report made by the police alleged that when R. G Anand attempted to cultivate the land, Munshi Ram could not tolerate his actions and raised the dispute that the land was his and directed the servants of R. G. Anand to leave the place and thus arose an apprehension of breach of peace. Apart from the affidavits, the documents, filed by the parties included the judgment and orders by certain courts as well as by the authorities functioning under the Delhi Land Reforms Act. After hearing the parties and appreciating the evidence, the S. D. M passed the order on 20th July, 1970, holding that R G. Anand had been in actual possession of the land in dispute at the lime when the preliminary order was passed on the 10th of October, 1968, as also within two months preceding that date and that he was entitled to its possession until evicted in due course of law. I have gone through the S. D. M/s order and I find it perfunctory and superficial inasmuch as no attention was given to the orders by various authorities, copies whereof had been placed on the record.
(3) The learned Additional Sessions Judge, Delhi, dealing with the petition preferred under Section 435 of the Code noticed that the land was originally owned by Munshi Ram but Shiban who had sold it hav- ing been at one time a tenant, was declared a Btiumidhar. Being aggrieved, Munshi Ram and his brother moved an application under sections 85 and 67(D) of the Delhi Land Reforms Act impugning the declaration of Bhumidbari rights in favor of Shiban and after holding an inquiry the Revenue Assistant in terms of his order dated the 23rd of November, 1966, held that Munshi Ram and his brother were entitled to Bhumidhari rights and declared them as such. Shiban's appeal against that order was found to have been dismissed by the Additional Collector on the 10th of May, 1967. After going through the affidavits filed by the parties, the two orders, mentioned above, and the judgments made by the civil courts, to which reference will be made, the Additional Sessions Judge recommended that the order passed by the S. D. M. on the 20th of July, 1970, be set aside.
(4) The first contention raised on behalf of Munshi Ram is that the entire proceedings deserve to be quashed inasmuch as no preliminary order within the meaning of sub-section (1) of section 145 of the Code, giving him the jurisdiction to proceed in the matter, was ever paused by the S.D.M. Section 145(1) of the Code, which is relied upon is:-
'145.(1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace-exists concern ing any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, staling 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.'
It is submitted by Mr. Harbans Singh Wadhwa for Munshi Ram that in the absence of a competent order recorded in terms of section 145 of the Code, the S. D. M. had acted without jurisdiction and the proceedings deserved to be quashed. It is pointed out that by the order dated the 10th October, 1968, without specifying that the Magistrate on perusal of the report submitted by the police had felt satisfied that there was apprehension of breach of peace, the parties were celled under section 145 of the Code for 14th of October, 1968. The counsel relieder on : AIR1949All402 , where the court observed :-
'If there is material before a Magistrate upon which he feels satisfied that there is a likelihood of a breach of peace, an omissicen to record a formal order as required by Section 145(1) may In treated as a mere irregularity which cured under section 537 of the Criminal Procedure Code.'
It must be appreciated that the two orders, reproduced earlier, were passed one after the other on the 10th of October, 1968, by the S.D.M. The second order started by slating that the case reported was one of emergency and contained the direction that pending decision under section 145 of the Code the property be attached. It could not be said in that situation that the S. D. M. had paused the preliminary order calling the parties before himself for 14th October, 1968, without applying his mind to the report submitted by the Assistant Sub-Inspector of Police.
(5) The learned counsel for Munshi Ram has also relied on Mettupalli China Kondappa (died) by L Rs. China Venkatareddy and others v. Ramsetty Ram Row, Sri Ram v The State, Peria Mannadha Goundar v. Maraappa Gounder, and Chanan Singh v. Emperor. In the Andhra Pradesh case no order whatsoever had been passed under the signatures of the Magistrate under section 145(1) of the Code. Observations made in that case can provide no guidance because in this case express orders were made by the S. D. M. on the 10th of October, 1968. in the Punjab case it was observed :-
'A Magistrate would have no jurisdiction unless he was satisfied that there existed a dispute concerning land etc. which would be likely to introduce a breach of the peace. A formal order to this effect under sub-section (1) is, thereforee, absolutely necessary in order to give jurisdiction to the Magistrate. An omission to pass the preliminary order in accordance with the requirements of sub-section (1) is not a mere irregularity but is fatal to further proceedings.'
The Madras and the earlier Lahore 'case do not advance the arguments any further. I may observe that section 145 of the Code is a special kind of provision conferring emergency jurisdiction on criminal courts to deal expeditiously, although for a temporary and specific purpose, with disputes concerning immovable property. The order passed under sub-section (1) thereof should be specific staling the reasons for apprehending breach of peace and requiring the parties to file written statements along with documents and affidavits explaining their respective claims. where there is no preliminary order at all the court will be having no jurisdiction to proceed under section 145 of the Code. In the circumstances of each case the court will have to look at the order purporting to have been passed under section 145(1) of the Code in order to find out whether the order suffers from such illegality or irregularity which may be incurable even within section 537 of the Code. An incurable illegality or irregularity will be that which may have occasioned such prejudice to the parties or either of them as may have resulted in failure of justice. Having consider all the cases cited by the counsel for Munshi Ram, I may take guidance from the observations made by the Supreme Court in Willie (William) Slaney. The State of Madhya Pradesh. the court said:-
'Like all procedural laws the code of Criminal Procedure is designed to subserve the ends of justice and not to frustrate them be mere technicalities. It regards some of its provisions as vital but others not and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby.'
The Supreme Court observed again in Pratap Singh v. Shri Krishna Gupta:-
'We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere forms. Some rules are vital and go to the root of the matter ; they cannot he broken; others are only directory an a breach of them can be overlooked provided there is substantial compliance with the rules reads as whole and provided no prejudice ensures; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines.'
Technicalities in procedure should not be allowed to stand in the way of administering justice and the court has to find out whether there has been or not substantial compliance with a provision and in case of controversial compliance whether any prejudice has arisen which may have caused a failure of justice. In the present case no prejudice is shown to have been caused. I am not impressed that the S. D. M. passed the order on the 10th of October, 1968, without applying his mind to the report submitted by Ram Kishan A S. 1. The parties received the notices issued under section 537 of the Code of the Code, filed their written statements and affidavits, produced documents and were heard and no objection was raised before the courts below that there had been any non-compliance with the requirements of section 145 of the Code causing any consequent failure of justice.
(6) Turning to the merits I find that Shiban, who at one time was a tenant under Munshi Ram had sold the land in dispute through a sale deed dated the 12th of August, 1968, which was registered on the 20th of August, 1968. and R.G. Anand claims his rights on the basis thereof. It was stated in the sale deed that the vendor had delivered possession of the demised property. It is to be found whether Shiban, the vendor was in physical possession of the disputed property in August, 1968, and could deliver it to R. G Anand. The affidavits filed in the course of the proceedings do not provide dependable evidence. There is conflict in the depositions of various persons who have filed affidavits on behalf of Munshi Ram. While Harsarup staled that he had been cultivating the land belonging to Munshi Ram with his bullocks, Bhagwan Sahai stated in paragraph 2 of his affidavit that he had seen Munshi Ram getting the land cultivated with tractors and ploughs. The affidavit filed by R. G. Anand starting on page 103 of the record and ending on page 108 is not verified and attested in/accordance with law.
(7) The correct position can be appreciated from the various orders passed in the course of the litigation between the parties. Shiban, who sold the disputed land through the sale deed, mention above, having obtained a declaration that he was the Bhumidhar, had earlier filed a suit on 19th July, 1965, for a perimanent injunction against Munshi Ram and others, praying that they bs restratned from interfering with his possession. The suit was decreed on 17th April, 1967. The appeal against that decree was dismissed by the Senior Sub Judge on 21st November, 1967. A regular second appeal being 84 of 1968 was filed in this court and while disposing it of on the 2nd of April, 1969, it was found that the courts below had not properly attended to the cantroversy between the parties inasmuch as they had ignored the contention of Munshi Ram and others that Bhumidhari rights had been secured by them on the basis of actual possession in terms of the orders passed by the authorities acting under the Delhi Land Reforms Act and the civil courts had no jurisdiction to interfere with those orders. This, court then passed the order :-
'Iwould accordingly set aside and quash both the judgments and decrees of the two courts below and send the case back to the trial court for redecision in accordance with law, and on adverting properly to the record of the case and to the various aspects to which the counsel for the parties may draw the court's attention.'
(8) After the remand the trial court dismisssed the suit filed by Shiban by its judgment dated the 13th of March, 1970. At the end of paragraph 5 of that judgment, after appraisal of evidence, Munshi Ram being one of the defendants, the trial court observed:-
'ACCORDINGLYI hold that the defendants are Bhumidhars.'
Dealing with the question as to who was in possession of the disputed land on the date of the institution of the suit, the trial court went through the copies of the Khasra girdawaris being Exhibits D.5 to D 7, dealt with the oral evidence adduced efore it. and taking into consideration the orders passed under the Delhi Land Reforms Act by which Bhumidari rights had been granted to Munshi Ram and others, observed: -
'THEright of Bhoomidari is granted only when the party is found to be in possession and as such the defendants were declared bhoomidars only when they were found to be in possession.'
Shiban being plaintiff No. 1 after appreciating his depoition as well as the statements of the witnesses produced by him, the trial court observed:-
'ACCORDINGLYI hold that plantff No. 1is neither the bhoomidar nor in possession of the land in dispute, hence this issue is decided against the plaintiffs. '
It may be noticed that R.G. Anand had moved an application under order 22, rule 10 of the Code claiming that on account of devolution of interest he was entitled to be joined as a co-plaintiff and his application having been allowed an amended plaint had been tiled. An appeal was filed against the trial court's decree dated the 13th of March, 1970 dismissing the suit but was dismissed as withdrawn on the 6th of January, 1971. It is urged by Mr. R L. Kohli appearing for R.G. Anand that the decisions on which the trial court decree dated the 13th of March, 1970, is based, may not bs taken into consideration, because the withdrawal of the appeal was on account of a judgment by the Supreme Court in Hatti v. Sunder Singh Be that as it may, it was not and could not have been urged that the effect of the orders made by the authorities under the Delhi. Land Reforms Act could be ignored. Bhumidhari rights on the basis of actual possession could be granted only under that Act and the orders passed there under were to prevail as final between the parties. Munshi Ram and others impeached the declaration of Bhumidhari rights in favor of Shiban and the Revenue Assistant after hearing the parties held that Munshi Ram and his brother were in cultivatory possession of the land in dispute and in consequence of his orders the entries in khasra girdawaris were corrected. The copy of that order dated the 23rd of November, 1966, made under section 85 of the Dalhi Land Reforms Act was placed on the record in the course of the proceedings under section 145 of the Code and I have read it. The application file I by Munshi Ram and his brother was based on the assertion that they had been in continuous possession of the disputed land since 1952. The parties apart from examining themselves produced witnesses and documents and after hearing them the Revenue Assistant found:-
(I)That Shiban had been erroneously declared Bhumidbar On 30th December, 1958; (ii) That Munshi Ram and his brother had been in continuous possession of the land.
An appeal filed against the order passed by the Revenue Assistant On 23rd November, 1966, by Shiban was dismissed by Shri V.P. Shingal, Additional Collector, Delhi, by his order dated 10th May, 1967, a certified copy whereof was also filed in the course of the proceedings under section 145 of the Code. Bhumidhari rights were granted to Munshi Ram and his brother on the findings that they were in actual possession and that Shiban was not in possession of the property in dispute. Such being the findings binding the parlies I am unable to hold that Shiban was in possession of the dispuled land on the 12th of August, 1968, or on the 20th of August, 1968, the first date being that of the execution of the sale deed and the second date being that of its registration. Shiban could not be held to have given the physical possession of the disputed land at any time to R. G. Anand.
(9) Accepting the recommendation made by the Additional Sessions Judge, Delhi, I hereby set aside the order made by the S. D. M. on 20th of July 1970, and declare that Munshi Ram was in possession of the land in dispute on the 10th of October, 1968, and within two months prior to that date and, if under attachment, the land be released to Munshi Ram. The courts below will in any event give effect to this order and if the land is in possession of R. G. Anand, get it restored to Munshi Ram. In case a suit is filed the parties will, of course be governed by the decree by which the civil court may dispose it of.