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Sadhvi Smt. Laxmi Das and anr. Vs. Sub-divisional Magistrate and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Petition No. 53 of 1983
Judge
Reported in1985WLN(UC)349
AppellantSadhvi Smt. Laxmi Das and anr.
RespondentSub-divisional Magistrate and anr.
DispositionPetition dismissed
Cases ReferredSitaram v. Ghasiram and Ors.
Excerpt:
criminal procedure code - sections 482 & 397--application under section 482--held, it is always open to court to treat it as a revision;it is always open this court to treat the petition under section 482 cr.pc as a petition for revision under section 397 cr.pc.;(b) criminal procedure code - sections 145 & 397--petition filed for quashing attachment order before filing their claims before sdm--held, petition is premature;to me, the present petition filed by the petitioners to quash the proceedings under section 145 cr.pc and the order of attachment, without even filing their claims before the learned magistrate is clearly premature.;petition dismissed. - - pc and the order of attachment, without even filing their claims before the learned magistrate is clearly premature......whereby the possession of the property was handed over to the trust for use as 'chhatravas'. the learned magistrate after perusing the complaint, the affidavit of smt. laxmi devi barupal and the documents accompanying the same, took cognizance and passed the preliminary order on january 7, 1983 requiring the parties to put in their written submissions of their claims as respects the fact of actual possession of the subject of dispute. the learned magistrate also directed attachment of the property and appointed the naib tehsildar, kolayat as a receiver of the same. the station house officer, rajner was further directed that he would not allow any party to enter the premises until further orders. in pursuance of this order the property was attached on january 19, 1983 by the station.....
Judgment:

Sobhag Mal Jain, J.

1. This petition under Section 482 Cr. PC. is directed against the order of the Sub-Divisional Magistrate dated the 7th January, 1983 and the attachment of the property made on January 19, 1983, The subject of dispute is a building in Kolayat which the petitioners call as 'Kabir Ashram'. On 6, 1983, an application was filed by Shri Panna Lal Barupal respondent No. 2, the then President of 'Jagjeevan Sarvodaya Ashram Trust, Kolayat', in the Court of Sub-Divisional Magistrate (south), Bikaner, on the averments that the property in dispute was given to the Trust by the Government for use as a Chhatravas'. The Trust got the possession of the property in 1969 and was using the same as 'Chhatravas' and Dharmashala. There was a fair ('MELA') in Kolayat on November 30, 1982 and Shri Pannalal and his family went there, stayed in the building and after the fair was over, they returned to Bikaner after locking the rooms and the main gate of the said building. After about 20 days the Manager, Shri Sohanlal, was sent to Kolayat and he found that the petitioners, namely, Sadhvi Smt. Laxmi Das and Sadhvi Smt. Tulsidas were staying in the building. On December 28, 1982 Shri Panna Lal sent his wife to Kolayat, as he himself was ill, and his wife found that the petitioner Sadhvis had broken the lock and occupied the house. Smt. Barupal requested the petitioners to vacate the building but they flatly refused and were bent upon fighting. The application was supported by an affidavit of Smt. Laxmi Devi and was also accompanied by documents out of which mention may be made to--(1) letter dated the 6th/7th October, 1969 of Shri Mohan Lal Sukhadia, the then Chief Minister to Shri Barupal which reads thus:

fiz; Jh ck:ikyth]

vkidk 28&8&1969 dk Ik= dksyk;r ds izenku vkJe Hkou dks Nk=kokl gsrq txthou loksZn; VLV dks fn;s tkus ds lEcU/k es feyk A bl Hkou dks Nk=kokl gsrq VLV dks lEHkyk nsus ds vkns'k dyDVj] chdkusj dks dzekad ,Q&62jk@d-55 fnukad 29&8&1969 }kjk Hkst fn, x, gS A

vkidk

n%

eksgu yky lq[kkfM+;k

(2) The order dated the 31st December, 1969 of the Tehsildar, Kolayat addressed to the Patwari, Kolayat which states:

mijksDr fo'k; es Jheku mi'kklu lfpo jktLo ssd foHkkx] jktLFkku t;iqj ds Ik= la[;k ,Q&2jk-d-@85 rk- 29&8&1969 ds }kjk ;g vkns'k Qjek;k x;k gS fd mijksDr Hkou ds pkjks dejks dks [kkyh djds rqjUr txthou VLV dks lkSi fn;k tkos A vr% vkidks vkns'k fn;k tkrk gS fd vki mijksDr Hkou ds pkj dejs igys [kkyh djok;s Fks A mudks Jh O;oLFkkid] txthou loksZn; vkJe VLV] dksyk;r dks okil lkSi nsos A ;g dejs Nk=kokl ds mi;ksx es gh fy, tk;sxs A vxj bl dk;Z es ugh fy, tkos tc bldh fjiksZV is'k dh tkos A pkjks dejs O;oLFkkid egksn; dks cvjt jlhn lkSi dj ixysuk fjiksZV dy is'k dh tkos A

bl vkns'k dks ijeko'd le>s A

n%

rglhynkj ] dksyk;r

In both these documents reference is made to the Government's order No. F-6(2)/Ra.Ka,/65 dated the 29th August, 1969, whereby the possession of the property was handed over to the Trust for use as 'Chhatravas'. The learned Magistrate after perusing the complaint, the affidavit of Smt. Laxmi Devi Barupal and the documents accompanying the same, took cognizance and passed the preliminary order on January 7, 1983 requiring the parties to put in their written submissions of their claims as respects the fact of actual possession of the subject of dispute. The Learned Magistrate also directed attachment of the property and appointed the Naib Tehsildar, Kolayat as a receiver of the same. The Station House Officer, Rajner was further directed that he would not allow any party to enter the premises until further orders. In pursuance of this order the property was attached on January 19, 1983 by the Station House Officer and handed over to the receiver. Aggrieved by the order dated the 7th January, 1983 and the attachment made on January 19, 1983 the petitioners have filed this petition before this Court under Section 482 Cr. PC.

2. I have heard Mr. Balia for the petitioners and Mr. M.M. Singhvi for respondent No. 2. Mr. Singhvi has raised a preliminary objection that as held by this Court in Sitaram v. Ghasiram and Ors. 1980 Cr. LJ 20, the order of attachment is not an interlocutory order but a final order and, therefore, open to revision. He contended that the present petition under Section 482 Cr. PC was not, therefore, maintainable. I do not see any substance in the preliminary objection raised by the petitioners in as much as it always open to this Court to treat the petition under Section 482 Cr. PC as a petition for revision under Section 397 Cr. PC.

3. Mr. Balia, counsel for the petitioners has urged that there was no material on the date of the preliminary order to show that there was any apprehension of breach of peace and that situation was not so emergent as to call for an order of attachment of the property. There is no force in the argument of the learned counsel. A perusal of the allegations made in the complaint filed by Shri Pannalal discloses that the 'Jagjeevan Sarvodaya Ashram Trust' was handed over the possession of the disputed property by the Government for use as 'Chhatravas' as back as 1969. The application of Shri Barupal further discloses that the petitioners were occupying the same unauthorisedly and were not prepared to vacate the same. Rather they were bent upon fighting. On these allegations the learned Magistrate was justified in coming to the conclusion that there was an apprehension of breach of peace and the situation was emergent, to direct immediate attachment of the property which was meant to be used as a 'Chhatravas'. Further, the order dated the 7th January, 1983 passed by the Sub-Divisional Magistrate, Bikaner was merely a preliminary order drawn under Sub-section (1) of Section 145 Cr. PC whereby the parties were required to put in their written statements of their claims as respect the fact of actual possession of the subject of dispute. It is always open to the learned Magistrate at any stage of the proceedings to cancel the order passed under Sub-section (1), if any party succeeds in showing to him that no such dispute exist or existed. Mr. Singhvi has frankly stated that the respondents will have no objection if the learned Magistrate applies his mind afresh to the question of attachment and receiver after the parties file their respective claims and documents in support of the same. To me, the present petition filed by the petitioners to quash the proceedings under Section 145 Cr. PC and the order of attachment, without even filing their claims before the learned Magistrate is clearly premature.

4. In the result, the petition filed by the petitioners under Section 482 Cr. PC is dismissed. It would be open to the Sub-Divisional Magistrate, Bikaner to decide afresh the question as regards the attachment of the property and the question of receiver, after the parties file their respective claims and documents.


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