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Ashrafi Lal Vs. Labh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Tenancy
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 667 of 1980
Judge
Reported in1982CriLJ2272; 19(1981)DLT450; 1981RLR443
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 145 and 146
AppellantAshrafi Lal
RespondentLabh Singh and ors.
Advocates: P.L. Kalra,; D.R. Sethi,; K.B. Kalra and;
Cases ReferredMathuralal v. Bhanwari
Excerpt:
.....the opposite direction. (11) it was next contended that the preliminary order was bad because the learned magistrate did not state the grounds of his satisfaction. slate and another 1974 clr 590, this court observed that section 145(1) of the code required of the magistrate to state the grounds of his satisfaction except in some exceptional cases such as where the magistrate may have examined the complainant, or may have visited the spot and recorded the results of enquiry before passing the preliminary order. state and another, where the magistrate in his preliminary order expressed in unequivocal terms that he was satisfied that there was a dispute in respect of the room and that if the said dispute continued, it may lead to breach of peace and danger to the life of one of the parties..........there was every likelihood of breach of peace. the premises may be directed to be sealed. the learned magistrate called a report from the police. on july 8. 1980, s.h.o. police station kotwali reported that besides the four parters in the concern, the workers and the hotel employees union have also joined in the fray with the result that tension is prevailing amongst all the parties and despite a sharp vigil there is every likelihood of peace being disturbed and even the possibilities of riot, arson, attempt to murder and murder cannot be ruled out. (2) the learned s.d.m. heard the complainant yag prashad at length and perused the police report and was convinced that a dispute of possession likely to cause breach of peace between the parties did exist, and drew up an order under.....
Judgment:

M.L. Jain, J.

(1) Spondent Labh Singh was a pre-partition tenant in acquired evacuee property No. 11/2034, first floor and No. 11/2035, ground floor, in Katra Lochhu Singh, Fountain, Dr. H. G. Sen Road, Delhi. He was living in the first floor and was running a 'Prern Khalsa Hotel in the ground floor as its sole proprietor. On September 6, 1966, he entered into a partnership with petitioner Ashrafi Lal and his brothers Yag Prashad and Har Prashad, agreeing that the business of Prem. Khalsa Hotel shall hence forward be carried on in the name and style of 'New Standard Hotel.' Labh Singh handed over to the firm all the assets of the Khalsa Hotel and possession of the premises No. 2035 for the carrying on of the business of the partnership. It was agreed that the rents of the premises shall be paid by the partnership and the premises shall constitute the property of the partnership. Ashrafi Lal has however contended that Labh Singh charged Rs. 41,000.00 in all for surrendering possession of the premises to him. In July 1972) Ashiafi Lal was registered as an occupier and employer of the premises. The telephone and electticity connections were also made in his name and the quotas of the commodities for the Hotel were also issued in his name. It appears that subsequently the relationship between the partners became strained. On somebody's complaint, the matter also came to the notice of the Managing Officer who by his order of December 29, 1979, held that Labh Singh lost his tenancy rights and was an unauthorised occupant of property No. 11/2034, and that Ashrafi Lal was an unauthorised occupant of property No. 11/2035. Labh Singh filed a suit for dissolution of the partnership and rendition of accounts which was dismissed on March 19, 1980, for default. It appears that a restoration application is still pending. On June 21, 1980, Ashrafi Lal also filed against his partners a suit for permanent injunction and obtained an order for an ex parte injunction on June 26, 1980. It appears to have been formally issued on June 27, 1980. The defendants were restrained from entering the property No. 11/2035, from creating any scenes or goondaism through self, agents, friends, relatives or hirelings and from interfering in any manner in the business of the plaintiff. This order was confirmed on July 3, 1980, Yag Prashad filed a complaint under Section 145 Cr. P.G. that the suit filed by Ashrafi Lal was a false one. He collected some hirelings and on the pretext of the stay order tried to throw out the belongings of the other partners and the workers. The workers lodged a report of this incident in the Kotwali Police Station under Section 380 Indian Penal Code . vide F.I.R. No. 976 dated July 3, 1980. Ashrafi Lal was taken into custody but was later on released on bail. The premises belonged to the partnership and respondent No. 1 is not in exclusive possession thereof. There was every likelihood of breach of peace. The premises may be directed to be sealed. The learned Magistrate called a report from the police. On July 8. 1980, S.H.O. Police Station Kotwali reported that besides the four parters in the concern, the workers and the hotel employees union have also joined in the fray with the result that tension is prevailing amongst all the parties and despite a sharp vigil there is every likelihood of peace being disturbed and even the possibilities of riot, arson, attempt to murder and murder cannot be ruled out.

(2) The learned S.D.M. heard the complainant Yag Prashad at length and perused the police report and was convinced that a dispute of possession likely to cause breach of peace between the parties did exist, and drew up an order under Section 145(1) Cr. P.C. He called upon the parties to appear in person and put in their written statements with regard to possession. Ashrafi Lal filed written statement on August 8, 1980 in which he alleged that he had purchased the hotel, was the sole proprietor, denied partnership and asserted that his brother Yag Prashad and others were his servants. Labh Singh on July 8,1980 and Yag Prashadon July l4, 1980 again made applications for attachment of the property. On July 26, 1980, Yag Prashad however turned his coat and applied for dropping of the proceedings. But on July 28, 1980, the parties fought and were arrested. On July 30, 1980, the Assistant Commissioner of Police requested the S.D.M. to take immediate action for sealing of the premises. On July 31, 1980, the police reported that there was a danger of some serious occurrence taking place and the parties concerned should be bound down. On August 8, 1980, Labh Singh and Yag Prashad again filed applications for attachment of the property. Some employees of the hotel filed an application on August 16, 1980 for withdrawal of the proceedings. On September 4, 1980, the learned S.D.M. heard arguments of both the parties and examined the documents and police report and found that the case was one of urgency and directed that the premises be attached till a competent civil court had decided the rights of the parties with respect to the person entitled to the possession thereof.

(3) On September 6, 1980 hotel employees prayed for withdrawal of attachment. On September 15, 1933, site inspection was made by the learned S.D.M. because a complaint was made that a room has been newly constructed and occupied by Labh Singh. A revision against the order of attachment was dismissed by the Additional Sessions Judge on September 17, 1980. Again a site inspection was undertaken on September 18 and 22. 1980, with regard to the side room. On September 26, 1980, the learned S.D.M. held that the side room was not a part of the hotel. On November 29, 1980, the appeal of Labh Singh against the order of the Managing Officer was dismissed by the Settlement Commissioner. Against that order Labh Singh then made a petition to the Assistant Chief Settlement Commissioner on December 23, 1980 for reconsideration of the matter. That application is pending.

(4) On October 27, 1980, an application of the hotel employees to be imp leaded as a party was rejcted.

(5) By the present petition filed on November 6, 1980, by Ashrafi Lal it is prayed that the preliminary order under sub section (1) of Section 143 and the order of attachment under Section 146 be set aside. It was urged that the petitioner was admittedly in possession of the premises, at any rate in joint possession and thereforee, the learned Sub-Divisional Magistrate had no jurisdiction to proceed under Section 145. It was further submitted that while the matter was pending in the civil court upon the suit filed by Ashrafi Lal, the learned Magistrate should have withdrawn his orders in order to support the orders of the civil court. It was further prayed that the property be delivered to the possession of petitioner. It was also urged that the Rehabilitation authorities were seized of the matter and by an order of May 12, 1978, the Government of India had already decided that the properties held by unauthorised occupants be transferred to them in accordance with the procedure laid down therein. That was an additional ground for cancelling the orders under Section 145 and 146 Cr. P.C.

(6) I have heard Mr. Sethi, Mr. P.L. Kalra for the petitioner and Mr. Ansari and Mr. K.B. Kalra for the respondents, and have studied the record.

(7) It was urged at the outset that while the matter was pending before the sub-judge, the learned magistrate had no jurisdiction to pass any order either under Section 145 or under Section 146 Cr. P.G. Reliance was placed upon two recent decisions of this Court one in Tejpal Singh v. Commismissioner of Police and others Criminal Writ No. 55 of 1980 decided on September 15, 1980 and another in Hari Kishan Dass v. State Criminal Revision No. 173 of 1980 decided on December 2, 1980, and an earlier decision in Anisul Rehman v. Azizul Rehman 1973 R.L.R. 418. Further support was sought from Malkappa v. Padmanna Air 1959 Kar 122, Sardari Lal and another v. The State of Punjab and Others , Yashwant Ganapati and Khot v. Smt. Anusnyabai Anna Khot and another and Multani v. Shah Abdu Turab Qadari, These decisions purport to hold that the ultimate objective of Section 145 Cr. P.C. is to compel parties to place their disputes before a civil court and to get a proper adjudication. A magistrate acting under Section 145 Cr. P.G. thereforee, ought to respect and sustain any recent decision given by a competent civil court on the question of possession, even if it was for the purpose of giving an interim relief. If there was likelihood of the breach of peace, the Sub-Divisional Magistrate should choose to proceed under Section 107 Cr. P.G. and not under Section 145 Cr. P.C. thereof.

(8) But all such authorities are of no moment in the face of Sajjan Singh son of Jagan Nath Singh v. Sajjan Singh son of Bhairu Singh & Another 1970 U.J. 75. Sajjan Singh (one) started proceedings under Section 145 of the Code of Criminal Procedure against Sajjan Singh (two). Upon report of the police made on October 21, 1967 the Sub-Divisional Magistrate passed a preliminary order the same day. He also ordered attachment of the house in dispute. On November 11, 1967, Sajjan Singh (two.) applied to the Sub-Divisional Magistrate that the proceedings be dropped and on January 24, 1968 he also filed asuit for permanent injunction against Sajjan Singh (one). In that suit, Sajjan Singh (two) obtained a temporary injunction the following day that his possession be not disturbed. He then moved one more application before the Sub-Divisional Magistrate that in view of the temporary injunction the proceedings under Section 145 be -stayed. The Sub Divisional Magistrate dismissed the application and ordered the Tehsildar to take over the house as a receiver. Upon revision, the learned Sessions Judge made a reference to the High Court recommending that the appointment of the Receiver be set aside. The High Court held that both the orders of the attachment of the house and the appointment of a receiver were valid and that the Civil Court's temporary injunction had no effect upon the proceedings before the Sub-Divisional Magistrate. The Supreme Court declined to set aside the order of the High Court, dismissed the special appeal and sent the case back to the Sub-Divisional Mngistrate for decision of the proceedings before him, leaving it to him to consider whether the Receiver should be continued or not. But he was directed that pending the decision of the proceedings under Section 145, he shall not hand over the possession to the other side, so long as the temporary injunction was outstanding. In Mohinder Singh v. Dilbagh Rai, , (vide paras 13, 18 and 8 to 12) the Court referred to R.H. Bhutani v. Miss Mani J. Desai & others : 1969CriLJ13 and to Sajjan Singh (supra) and observed that the ratio of these judgments of the Supreme Court is that the pendency of the same matter between the same parties in civil court does not mean the ouster of the juris- diction of the Executive Magistrate under Section 145 Cr. P.C. in spite of the stay orders. Section 145 empowers the authorities concerned to take immediate preventive action in an emergency because cases not unknown in which parties have tried to take forcible possession of land in disregard of the injunctional orders of a civil court. From a purly practical point of view, it would be proper not to curb this jurisdiction and to leave the aggrieved party to knock at the doors of the civil courts to initiate proceedings for the disobedience of the injunctional order. At the same time, the jurisdiction under Section 145, Criminal Procedure Code, should be exercised with extreme caution if a civil court is properly seized of the case. Three types of orders can be envisaged to be passed by the Civil Courts : (i) the appointment of receiver to manage the properties in dispute : (ii) the restraining of one of the parties from interfering with the possession of the other party during the pendency of the suit, about which the civil court prima facie feels satisfied, and(iii) the maintenance of status quo about the possession of the property during the pendency of the case.

(9) If a civil court appoints a receiver then there is no possibility of any dispute of the possession as the receiver gets into the possession of the property on behalf of the Court. This view of the court already stands incorporated in sub-section (2) of Section 146 that the order of attachment or appointment of a receiver by the magistrate is subject to the appointment of a receiver by the civil court. In the second type of cases too, the court upon a deeper consideration thought that the jurisdiction of a criminal court can not be restricted because if the other party uses force to dispossess the person who has obtained the stay order, then a situation calling for proceedings under Section 145 Cr. P.C. and exercise of emergency powers is created and the magistrate will then step in. If the magistrate so acts, he acts in aid of the civil court and does not violate any Jaw. Where one enters into wrongful or forcible possession of the property and obtains an order from the civil court that he may not be dispossessed or that status quo be maintained, the proceedings under Section 145 cannot be directed to be dropped, because if that is done, then he can have his suit dismissed and thus perpetuate his wrongful possession. In the third type of cases, that is, maintenance of status quo, both or any of the parties may try to get into actual possession, and if the situation deteriorates, then the police or the magistrate cannot act as silent spectators to witness the breach of peace. If they act in such circumstances and the magistrate attaches the subject-matter of the dispute then he would be acting in defense of the maintenance of the status quo. Such situations are not purely hypothetical or conjectural but do occasionally arise in the courts. If the position that the magistrate under Section 145 cannot continue with the proceedings when the civil court is seized of the case or passes injunction orders referred to above, is accepted, then it can lead not only to the breach of peace but also to disrespect towards the order and the process of the civil court.

(10) I am unable to sec anything in Mohinder Singh (supra), any authority for the proposition that the magistrate must hold his hands where one or more of the parties to the dispute have taken the matter to the civil court either before or after the magistrate is called upon to act under Sections 145 and 146 Cr. P.C. The observations rather quite clearly point in the opposite direction. I am thereforee firmly of the view that the jurisdiction of the magistrate under Sections 145 and 146 to maintain peace will prevail over the orders of the civil court except where (i) the determination of rights by the civil court has become final, see S. Gordon Sims v. Johurry Lal 5 Cwn 563 or (ii) the civil court has appointed a receiver vide sub-section (2) of Sec- corporation 146. The requirements of peace are paramount, the orders of the civil court notwithstanding. I say so in spite of my experience that this is one provision which has often been misused and abused. I have support for this view in Gurdip Singh and another v. S.S. Harti and another Cr. M. 295 of 1975 deckled on January 6, 1976 by V.D. Misra J. of this Court, currently Chief Justiec of the Himanchal Pradesh High Court.

(11) It was next contended that the preliminary order was bad because the learned Magistrate did not state the grounds of his satisfaction. In Sakhi Mohd. v. Slate and another 1974 Clr 590, this court observed that Section 145(1) of the Code required of the Magistrate to state the grounds of his satisfaction except in some exceptional cases such as where the Magistrate may have examined the complainant, or may have visited the spot and recorded the results of enquiry before passing the preliminary order. The order should contain the grounds leading to such satisfaction. In Roghuvir Narayan Loflikar arid another v. Caetano Figueiredo and another, 1974 Cri LJ 715, where the Magistrate stated that 'it has been made to appear to him that there is likelihood of breach of peace', the expression was held ambiguous and could not give jurisdiction to pass an order under Section 145 subsection (i). In Mirza v. State and another, where the Magistrate in his preliminary order expressed in unequivocal terms that he was satisfied that there was a dispute in respect of the room and that if the said dispute continued, it may lead to breach of peace and danger to the life of one of the parties but did not state any grounds for his being so satisfied, the preliminary order was deemed to have been passed without powers. In Saldari Lal and another v. The State of Punjab and others , and Faqir Chand v. Bhana Ram , it was laid down that the magistrate must set out the grounds which are the basis of his satisfaction. The reasons on the basis of which he declines to pass the initiatory order must also be stated.

(12) I have considered all these cases. Sub-section (1) of Section 145 Cr. P. C. requires that the magistrate should state grounds of his satisfaction that a dispute exists concerning any land or water or boundaries thereof which is likely to cause a breach of the peace. Those grounds are (a) a report of a police officer, or (b) other information. He need. not state any facts beyond those identifying the property and the parties. Ground means 'foundation or basis' and the foundation or basis of satisfaction is either the police report or other information. To my mind if I may say so with profound respect the correct approach is what was adopted in Khosh Mahomed Sircar and others v. Nazir Mahomed 1904 Cwn 1065. It was held that in determining whether a particular initial order is defective or not, we ought to look to its substance rather than to its form. Where the police report sets out sufficient grounds and is expressly referred to in the intial order by the Magistrate, such order sufficiently fulfills the requirements of the law. If the police report itself does not disclose any ground for holding that there is a likelihood of a breach of the peace, the position would be different. This was followed in Kulada Kin Kar Roy v. Dinesh Mir I. L. R. (1905) Cal 33. Where the magistrate expressed his satisfaction on the basis of the facts set out in the application before him and in the examination of the applicant on oath, but failed to record in his preliminary order the reasons for his satisfaction, the Supreme Court in R.H. Bhutani v. Mani J. Desai, 1968 S.C. 1444 held :-

'THEsatisfaction under sub-section (1) is of the Magistrate. The question whether on the material before him he should initiate proceed- ings or not is thereforee, in his discretion) which no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, thereforee, be laid down as to the sufficiency of material for his satisfaction. The language of the sub- section is clear and unambiguous that he can arrive at his satisfaction both from the police report or 'from other information' which must include an application by the party dispossessed.'

(13) The police report that was before the magistrate in the present case clearly indicated that breach of peace has already occurred and there was further likelihood of major crimes. Satisfaction arrived on the basis of such a report fulfills the requirement of law. The argument of the petitioner in this regard is thereforee, rejected.

(14) It was then contended that as held by the Managing Officer, the petitioner was in occupation though unauthorised. Upon site inspection on September 4, 1980, the learned S.D.M. had found Ashrafi Lal in virtual occupation of the hotel. thereforee, there was no justification for the magistrate to act under section 145. He should have maintained the possession of the petitioner. But in R.H. Bhutani v. Miss Mani J. Desai & others (supra) it was held that the fact that party is found in de facto possession does not divest the magistrate of his jurisdiction. That provides an answer to this contention. Besides, in deciding the question of possession under Section 145 of the Code, the magistrate is not concluded by every previous order of any court or authority relating to the subject of dispute and the weight to be attached to any such previous order depends on the facts and circumstances of the particular case. Kulada Kinkar Roy (supra) supports this view. According to the ratio of Chandu Naik and others v. Sitaram B. Naik and another 1978 Gar 33, the proceedings under the Displaced Persons (Compensation & Rehabilitation) Act, 1954- is no bar to the proceedings under Section 145 Cr. P.C. which primarily concerns with the prevention of the breach of peace by declaring the party in possession to be entitled to- remain in possession until evicted lawfully. I thereforee, reject the contention that the learned Executive Magistrate should not have initiated proceedings under Sections 145 and 146 because the petitioner was in actual physical occupation.

(15) Lastly, it was contended that the order of attachment was passed without proper hearing and without existence of any emergency. Mr. P.I. Kaira urged that the respondent can not be permitted to- hire goondas and induce a forced emergency in order to invoke the jurisdiction of the magistrate to attach the hotel. The learned S.D.M. should have discountenanced such a situation. As observed by me in Malam Singh v. State of Rajasthan , an order in case of emergency will always be made ex-parte and it will be in a very limited number of cases that an order in any emergency will be made after hearing the parties. It does not however, mean that an order of attachment finally disposes of the principal controversy as to possession. If the magistrate, after emergency attachment cannot proceed to decide the matter of possession, then the whole purpose of Section 145 and even his own order directing the parties to-place their case before him can be frustrated by the magistrate by making an order of attachment and by refusing to take any further action. That was also the view taken in, Kshetra Mohan Sarkar v. Paran Chandra Mandal and has since then been confirmed by the Supreme Court in Mathuralal v. Bhanwari- lal and another, : 1980CriLJ1 . The Magistrate's jurisdiction does noi come to an end as soon as an attachment is made on the ground of emergency. Section 146 docs not contemplate that regardless of the situation consequent upon which an attachment is effected, it is the civil court and .not the Magistrate that is to have further jurisdiction in the matter. Sections 145 and 146 Cr. P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of peace because of a dispute concerning any land or water or their boundaries. There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of peace.

(16) Now, the order in the present case was made after hearing and due deliberation. The learned Magistrate has recorded that proceedings under Section 107/151 Cri. P.C. are pending against the parties and yet the parties are poised for confrontation. He also saw the evidence of physical injuries on the person of Labh Singh and his son. When he went again for site inspection at the close of the day on September 4, 1980 the parties exchanged hot words in his presence. That fully vindicated the order made by him earlier in the day. It is admitted by the learned counsel for the petitioner that goondaism was taking over, whoever be responsible for that, and if that be so as it was, then emergency action was surely called for. In such situations, one of the parties is bound to have a feeling a genuine or a supposed one, that it has been a victim of violence by its opponent but such a situation can not immediately be resolved except by displacing both the parties and by quickly deciding the matter of possession. In this case, the learned Magistrate has attached the property until the rights of the parties have been settled by the competent court proceedings for which are already going on. But that does not preclude him from passing a final order. The last submission is also rejected.

(17) Considering all the record, all the circumstances and all the arguments, I do not feel pursuaded to interfere in the impugned orders of the learned S.D.M. and direct that this petition be and is hereby dismissed.


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