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Haji Habib Ullah Shah and ors. Vs. S.H.O. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1985CriLJ1548
AppellantHaji Habib Ullah Shah and ors.
RespondentS.H.O. and ors.
Excerpt:
- .....8, 9 and 10) and son of petitioner no. 1, namely mohd. maqbool shah had taken on lease the said hotel building for conducting the business under the name and style of new pine view hotel at pahalgam. the lease was granted by haji habib ullah shah. petitioner no. 1 said maqbool shah has died towards the end of 1984 leaving behind him three minor children and the widow. the business in the hotel therefore became the bone of contention between the rival claimants and it is stated that towards the end of march, 1985 when the season in pahalgam was about to set in, the first group of the petitioners forcibly occupied the said building with a view to commence the hotel business in the said building. consequently this created some feud and the third group staked their claim to the business.....
Judgment:
ORDER

M.L. Bhat, J.

1. This is a private dispute as regards possession of a building known as 'New Pine View Hotel' at Pahalgam which is the subject matter of proceedings under Section 145 Cr. P. C. in the court of Chief Judicial Magistrate, Anantnag. Respondent No. 1 has initiated the proceedings because there was imminent danger of breach of peace in his opinion and respondent No. 2 has passed a preliminary order and attachment order in the proceedings under Section 145 Cr. P, C. The State is not at all interested in the matter. Therefore, for proper appreciation of this petition, it is necessary to place the parties in four groups; 1st group consisting of petitioners 2 to 7, second group consisting of petitioners 1, 8, 9 and 10 the third group consisting of respondents 4, 5, 6 and 7 and the fourth group consisting of respondents 1, 2 and 3. This petition is under Section 561-A Cr. P. C. for quashing the preliminary order as also the order of attachment passed by the Chief Judicial Magistrate Anantnag under Section 145 Cr. P. C.

2. This petition was admitted by a learned single Judge of this Court and attached property was ordered to be restored to the person from whom it was taken over. Thereafter an application was moved by second group for vacation of the order-dated 15-4-1985 to which objections have been filed by the first group, Thereafter the learned single Judge has ordered to place this case before me on 2nd of May, 1985. Accordingly on 2-5-1985 when this case was placed before me for vacation of the interim order, I thought it proper to dispose of the main petition under Section 561A Cr. P. C.

3. Among the petitioners there is inter se clash. They constitute two groups. Petitioners 8,9 and 10 are said to be minors who are shown through their next friend Mst. Fatima who is their grand mother and petitioner No.2 herein. From the perusal of power of attorney dated 15-4-1985 it is revealed that Mst. Fatima has not put her signatures or thumb impressions on the said power of attorney. Only seven persons appear to have put their signatures and thumb impressions, whereas eight persons were required to authorise Mr. Beg on behalf of the petitioners if it is taken to be correct that petitioner No. 2 was acting for the minors also/ However, absence of her thumb impression or signature reveals that she is not acting on behalf of the minors. On behalf of the minors and petitioner No. 1 who are second group, one Mst. Tahira, their mother, widow of late Mohd. Maqbool has filed the application for vacation of the order. Petitioner No. 1's support is claimed by both the groups. At one stage a learned single Judge of this Court had directed presence of petitioner No. 1 before the court, however some medical certificate was produced by the first group of the petitioners and on the basis of the said certificate they justified his absence from the court. Therefore petitioner No. 1 is to be treated to be with petitioners 8,9 and 10 and it is to be held that petitioner No. 2 has not filed this petition on their behalf. It appears that there is a clash of interest between petitioners 2 to 7 i.e. first group with petitioners 8,9 and 10 i.e. the second group. Consequently petitioner No. 2 cannot be permitted to represent the minors when she herself is not represented in these proceedings by a duly signed power of attorney. She has not filed any affidavit indicating that she has no clash with the minors. Therefore the application of the minors through their real mother is to be considered as valid and to have been filed on behalf of proper person.

4. Petitioners as also Respondents 4, 5, 6 and 7 are said to be the owners of a huge immovable property at Srinagar and Pahalgam. The building at Pahalgam known as 'New Pine View Hotel' is in dispute. Its title could not be questioned in these proceedings, but its possession is in dispute. It appears that father of the minors (petitioners 8, 9 and 10) and son of petitioner No. 1, namely Mohd. Maqbool Shah had taken on lease the said hotel building for conducting the business under the name and style of New Pine View Hotel at Pahalgam. The lease was granted by Haji Habib Ullah Shah. Petitioner No. 1 said Maqbool Shah has died towards the end of 1984 leaving behind him three minor children and the widow. The business in the hotel therefore became the bone of contention between the rival claimants and it is stated that towards the end of March, 1985 when the season in Pahalgam was about to set in, the first group of the petitioners forcibly occupied the said building with a view to commence the hotel business in the said building. Consequently this created some feud and the third group staked their claim to the business and went to the spot to overthrow the first group. For some days continuously quarrels had taken place over the possession of the property and when the business was run by the first group, the third group tried to deprive them of the possession which gave rise to apprehensions of breach of peace so much so that both the parties had gone to the SHO and even to Assistant Director Tourism Pahalgam and made a request to the SHO Pahalgam for initiation of proceedings for maintenance of peace on spot at Pahalgam. The breach of peace in respect of the possession of the business of the hotel had affected the tourist season and it was likely to have adverse effect on the tourist trade in Pahalgam. Therefore the concerned SHO made an application in writing to the CJM Anantnag for initiating proceedings under Section 145 Cr. P. C. and for attaching the property. The learned CJM after perusal of the police report and the material placed before it, recorded his satisfaction that there was a dispute as regards possession of the hotel building which was likely to cause the breach, of peace and passed a preliminary order in terms of Sub-section (1) of Section 145 Cr. P. C. on 9-4-1985. He directed the parties concerned in the dispute to put in their affidavits, documents and objections and claims as regards possession and ordered copy of the order to be pasted at conspicuous place. On the same day by a separate order after giving reasons, he proceeded to attach the property under Sub-section (4) of Section 145 Cr. P. C. An inventory was directed to be made in presence of witnesses. The order was executed and the hotel seems to have been attached. The first group of the claimants consisting of petitioners 2 to 7 made an application for quashing of the proceedings and obtained an order of restoration of possession in their favour from this Court.

5. In order to make their claim appear as strong they have joined petitioner No. 1 and minors who are sons of Mohd. Maqbool under whose tenancy the building was and who is now dead. The only persons who are therefore harmed by the orders of this Court are the minors whose father was tenant and who could claim possession over the building by virtue of rent note being in favour of their father. After his death the other, parties i.e. the first group and the third group seem to have tried to grab the business of the hotel and in order to gain success in their mission they seem to occupy the hotel forcibly which has given rise to apprehension of breach of peace and has compelled the police to initiate the proceedings under Section 145 Cr. P. C.

6. On 27-3-1985 a civil suit appears to have been presented before the Sub Judge Anantnag against the petitioner No. 1 and respondents 4 to 7 herein to the effect that the petitioners 2 to 10 are in possession of the hotel building in pursuance of rent note which was executed by petitioner No. 1 herein in favour of the father of the minors namely Mohd. Maqbool. In Para 2 of the plaint it was admitted that Mohd Maqbool father of the minors petitioners who are petitioners 8, 9 and 10 herein was the actual tenant of the building. The other petitioners had claimed that they would inherit the tenancy and were in possession of the said building. In the said suit minors were shown to be suing through one Bashir Ahmad Shah. Status quo order was passed by the civil court which reads as under:

Issue notice to the other side. Meanwhile the parties are directed to maintain status quo on spot till next date of hearing.

Next date of hearing was 2-4-1985. So the order of status quo had expired on 2-4-1985. In the said suit one Mst. Tahira Akhtar mother of the minors who has moved application for vacation of stay in this Court, had made an application that Bashir Ahmad be removed as next friend of minors and she be appointed in his place. She had stated that attempt was made to occupy the hotel building illegally by the plaintiffs in that case and they were using the minors as a shield for their design. Certified copy of this application, copy of plaint, copy of status quo order and certified copy of proceedings under Section 145 Cr. P. C. are on the record.

7. Legality of the preliminary order is challenged on the ground that the parties are in joint possession of the hotel building which is undivided. It is also averred that third group has entered into conspiracy with the 4th group and attempt is being made to dispossess the first group and second group from the hotel business and they are sought to be deprived of their lawful business. It is also averred that civil suit is pending and status quo order is issued. Therefore proceedings under Section 145 Cr. P. C. would not lie. The proceedings are said to be abuse of process of court,

8. I have heard learned Counsel for the parties and examined the preliminary order as also the order of attachment passed on 9-4-1985. It is true that the ownership of building is claimed to be joint, but possession over the building and business conducted in that building is not claimed to be joint in the application or in the preliminary order. The petitioners seem to have confused jointness of title with jointness of possession. The property may be jointly owned, but it can be separately possessed and the person in possession cannot be ousted therefrom except in accordance with the procedure established by law. If a person is in possession of joint property the remedy of other co-owners who are excluded from possession is to bring a suit for partition and possession for claiming share therein. They cannot take law into their own hands and enter upon the property forcibly and contend that they being joint owners had a right to make forcible entry into the property. The building Pine View Hotel may be owned jointly by the parties, that is absolutely immaterial for purposes of proceedings under Section 145 Cr. P. C. The trial court is concerned only with the possession of the property at the time of preliminary order or possession within two months next before the date of such order if it is claimed that dispossession has taken place wrongfully. Question of title is not to be considered in such proceedings because such proceedings are to be concluded summarily on the basis of affidavits and documents. Obviously, therefore, title cannot be subject matter of these proceedings for which the remedy lies elsewhere. From the documents which -are placed on record by the petitioner himself i.e. Annexure P-I (copy of the rent note), it is revealed that the property was under the tenancy of Mohd Maqbool Shah, father of the minors. The rent note is in favour of one Habib Ullah Shah who is petitioner No. 1 herein and ' was initially for eleven months from 10th February, 1975. After that, it is an admitted case of the rival contenders that Mohd Maqbool was in occupation of the said building as tenant. He could be evicted from the said building only by Haji Habib Ullah Shah, petitioner No. 1 herein. Since his tenancy has not been determined by the petitioner No. 1, therefore, his tenancy rights are subsisting. Annexure P-2 is a receipt from Electrical Department and is not shown in whose favour it is issued. Annexure P-3 is application of Mohd Maqbool Shah to Tourist Officer for permission to purchase Generating set and there are various copies which are copies of correspondence between Mohd Maqbool and various authorities and there is the certificate of registration in favour of New Pine View Hotel issued by Kashmir Hotel and Restaurant Association Srinagar. On the basis of these documents this Court is asked to believe that the property in dispute is in joint possession of the parties. I am afraid this contention cannot be accepted. The petitioners (petitioners 2 to 7) are at liberty to prove this fact before the learned CJM who is seized of the matter. They cannot by extraneous record ask this Court to exercise powers under JS.-561 A Cr. P. C. for quashing the proceedings. Proceedings could be quashed under the said provisions if the preliminary order was infirm or bad in law. '

9. Preliminary order which is examined by me carefully indicates that learned Magistrate has applied his mind and taken care to record his satisfaction about the existence of apprehension of breach of peace with regard to the possession of the property. The preliminary order is in conformity with Sub-rule (1) of Section 145 Cr. P. C. It is the prerogative of a Magistrate to assume jurisdiction under Section 145 Cr. P. C. On what material he assumes jurisdiction is not justiciable. He may assume it on police report or on affidavit of a private party, it is a matter which is completely within his domain. This Court under Section 561-A, Cr. P. C. cannot direct a Magistrate to assume satisfaction in a particular manner. This Court is concerned only to see that the provisions of law are followed and preliminary order records satisfaction as regards existence of dispute which dispute in turn gives rise to breach of peace. Condition precedent for drawing up of preliminary order is existence of dispute as regards possession which gives rise to breach of peace. All the ingredients of section are existent in the preliminary order. Therefore the preliminary order does not suffer I from any defect. The preliminary order is, therefore, held to be a perfectly legal order.

10. Order of attachment is an ancillary order which enures only till the proceedings are finally disposed of or till the proceedings are continued in the court below. If the court below determines possession finally in favour of one or the other party, possession will be delivered to him. If the court below drops the proceedings for some reason or the other, party from whom possession was taken will get the possession back. Attachment is, therefore an interim arrangement to prevent the party from disturbing peace pending decision in the case if the Magistrate considers the situation to be emergent one. The order of attachment passed by the Magistrate also reveals that Magistrate has applied his mind, recorded his satisfaction and has given reasons for attaching the property. Therefore the compliance with the requirements of law is there which renders the order valid. Attachment order also cannot be said to be defective.

11. That brings me to another limb of the argument on behalf of the first group i.e. petitioners 2 to 7. A civil suit is pending in the court of CJM in which status quo was maintained up to 2nd April, '1985. The preliminary order in the proceedings under Section 145 Cr. P. C. was drawn on 9-4-1985. On this basis it is urged that in the presence of suit, criminal proceedings would not lie! This Court has referred to Division Bench some cases in which different points are involved. The point involved in these cases is as to whether order of ad interim injunction passed by Civil Court would be a bar for the criminal court to take cognizance of a dispute under Section 145 Cr. P. C. in respect of the same subject matter which is involved in the civil litigation. That question does not arise in this case because the petitioner has placed Annexure P-3, a certified copy of the order dated 27-3-1985 passed by the Sub Judge CJM Anantnag on the file. That order has expired on 2-4-1985. Its life was only up to that date. Therefore, as on 9-4-1985 when the proceedings under Section 145 Cr. P. C. were taken by the C. J. M. Anantnag, there was no order of status quo. Ever otherwise the order of status quo which was ordered to be maintained by the parties is vague and it does not determine as to who was in possession and who was prevented from interfering in the possession of the property. The Chief Judicial Magistrate has in his order dated 9-4-1985 held that there was serious dispute about the possession of the building and the parties had not only fought with each other but taken law into their own hands and are threatening each other which amounts to a penal offence so much so Tourist Department has also been affected by the breach of peace created by the parties on spot. Therefore, it was necessary for the CJM to take-cognizance under Section 145 Cr. P. C, and attach the property under Sub-section (4) of the said section. There was no injunction on that date of a civil court and therefore his jurisdiction was not barred from proceeding under Section 145 Cr. P. C.

12. Merely because a civil suit is pending the proceedings under Section 145 Cr. P.C. in respect of the property which is subject matter of the civil suit will not be barred. It is the order of ad interim injunction passed by the Civil Court in a Civil litigation which may or may not affect jurisdiction of the Magistrate to deal with a dispute under Section 145 Cr. P.C., but the order of ad interim injunction must be in force and must be in unambiguous terms. If there is no order of ad interim injunction in respect of the property against one or the other party, power of a Judicial Magistrate to take cognizance under Section 145 Cr. P.C. cannot be questioned when he is satisfied that cognizance is required to be taken. Therefore the contention of the learned Counsel for the first group is without force.

13. The pleas raised in Section 561-A are touching the merits, of the case and are factual pleas which are to be brought before the learned CJM Anantnag who will consider their effect on the proceedings and may help him in disposing of the proceedings and in determining the possession of the property. These pleas cannot be considered in an application under Section 561-A Cr. P.C.

14. It was contended by Mr. Qayoom that a usurper and trespasser who have caused breach of .peace on spot and have deprived the minors from the lawful possession of the building and from the business have been paid premium and they have by misleading this Court obtained possession of the property back to the detriment of the minors. This order of restoration was an interim order passed by this Court and was to enure only up to the disposal of this application. Since the application has now been disposed of, therefore, the order dated 15-4-1985 is also to be vacated.

15. In view of the discussion made hereinabove it is held that the proceedings under Section 145 Cr. P.C. in respect of New Pine View Hotel initiated by the police before the CJM Anantnag are not in any manner defective or bad in law. The said proceedings are perfectly valid and justified. Consequently the preliminary order and the attachment order under Section 145 Cr. P.C. as regards the disputed property passed on 9-4-1985 are legally valid and justified. The police concerned is directed to attach the property in accordance with directions issued by the CJM Anantnag on 9-4-1985. The interim order passed by this Court about the restoration of the possession on 15-4-1985 is hereby vacated.

16. The New Pine View Hotel being a place of business, therefore, it will not be proper to close the said hotel and keep it locked. The CJM Anantnag is directed to make proper arrangements for running of the hotel and for taking steps to maintain its accounts for the person who ultimately will be entitled to be declared in possession of the said building.

17. The petition is disposed of accordingly. The parties are directed to appear before CJM on 16th May, 1985.


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