Allowed

Satbir Singh and Ros v. State of Haryana and Ors.

Punjab & Haryana HC18 Sept 2013CRM-M/27039/2009

Case brief

AI extract

What is this about?

The Single Judge held that a dispute over jointly owned land with a pending civil suit for partition does not attract Section 145 Cr.P.C., as the appropriate remedy is partition. Consequently, interim orders under this section were liable to be quashed.

What did the court decide?

Orders under Section 145 Cr.P.C. (Annexures P-7, P-8, P-9) and notifications concerning attachment and leasing of the disputed land were quashed.

Satbir Singh and Ros Vs State of Haryana and Ors. — Land Acquisition | Punjab & Haryana HC (2013)

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Crl.Misc.No.M-27039 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Crl.Misc.No.M-27039 of 2009 (O&M) Date of decision:18.09.2013

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Satbir Singh and others

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....Petitioners

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Versus

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State of Haryana and others

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....Respondents

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CORAM:- HON'BLE MS. JUSTICE RITU BAHRI

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Present:- Mr. Sanjiv Gupta, Advocate

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for the petitioners.

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Mr. Shivendra Swaroop, AAG, Haryana.

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None for respondents No.4 to 10.

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RITU BAHRI, J (ORAL)

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Despite repeated reminders sent by the learned State counsel, record has not been produced by the office of SDM, Palwal before this Court.

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Vide this criminal miscellaneous petition filed under Section 482 Cr.P.C seeking quashing of Kalendra under Section 145 Cr.P.C. (Annexure P-7), warrants of attachment dated 30.12.2008 and 24.2.2009 (Annexures P8 and P9) i.e. proceedings under Section 145(1) Cr.P.C with respect to the entire land and for staying the operation of the impugned orders or in the alternative dispossession of the petitioners from the land in dispute. RSA No.1694/1999 titled as Dharamvir and others vs. State of Haryana and others was decided on 28^th October, 2006 and the following

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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decision has been given in favour of the plaintiffs:-

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“Accordingly, the writ petition filed by the plaintiffappellants is dismissed. The appeal are partly accepted to the effect that plaintiff-appellants are held to be in cultivating possession as owners of the land measuring 825 acres entitled to its legal possession in their own right. The judgment of the courts below are modified in terms stated above.”

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After the judgment passed in RSA No.1694 of 1999, the plaintiff-appellants therein were held to be in cultivating possession of the land measuring 236 acres of land. Therefore, the plaintiffappellants were held to be the owners of this land. Applications for amendment of the decrees were moved and the said criteria was made vide Annexures P2 and P3.

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Thereafter, vide Annexure P5, Kalendra under Sections 107/151, 107/150 Cr.P.C was filed on 05.11.2008 which was ultimately dropped after a gap of six months i.e in April, 2009. Thereafter, the Sub Divisional Magistrate, Palwal, under Section 145 Cr.P.C vide order Annexure P7 issued notices.

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After giving notice to 11 land owners, who were parties to the aforesaid RSA, in respect of land measuring 236 acre. Vide order dated 30.12.2008 (Annexure P8), notice was served upon both the concerned parties. Vide order dated 2.3.2009 (Annexure P-9) passed by the Sub Divisional Magistrate, Palwal, Naib Tehsildar was

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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appointed as Superdar of the disputed property by SHO, P.S.Hassanpur and directed to attach the above said property by taking and keeping possession thereof. Vide order dated 21.8.2009 ( Annexure P-10), notice was issued to lease out the disputed land on 12.8.2009. Till date no action had taken place.

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Plaintiff/appellants had been held owners as per the judgment dated 28.10.2006 Annexure P1 were 76. Thereafter, the proceedings which were initiated under Section 145 Cr.P.C. by giving notices to 11 plaintiffs-land owners.

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The judgment of the High Court had attained finality as no appeal against the same had been filed in the Hon'ble Supreme Court and there is no apprehension of breach of peace as the plaintiffs were held owners of the land in dispute. Accordingly, orders Annexures P7, P8 and P9 were liable to be quashed.

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Argument for the counsel for the petitioners is that as per judgment Annexure P-1, the plaintiffs were held owners of 236 acres of land. They had a remedy of seeking partition of the said land and hence the dispute is not covered under Sections 145 and 146 of the Cr.P.C. Moreover, proceedings under Sections 107 and 151 Cr.P.C were initiated vide Annexure P5 and were dropped after a gap of six months. The grievance of the petitioners is that the land in question was lying vacant, no auction was held for the last 5 years.

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Counsel for the State has raised a preliminary objection that the petitioners had not availed of the alternative remedy of filing

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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a revision before the Court of learned Sessions Judge against the impugned orders Annexures P7, P8 and P9. Since the joint land between the petitioners had not been partitioned, there is apprehension of breach of peace which existed till today.

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I have heard learned counsel for the parties. First objection raised by the petitioners with regard to that no notice under Section 145 Cr.P.C was given to all the co owners has been considered by a co-ordinate Bench in Kali Ram vs. State of Haryana 2003(2) R.C.R.(Criminal) 595 in para No.12 wherein it was held as under:-

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“Lastly, objection was also taken on behalf of the respondent with regard to the maintainability of the revision petition in this Court because revisional jurisdiction of Court of Sessions had not been invoked by the petitioner. Strength was sought from the observations made in Jaswant Singh Vs. State of Haryana and others, 2000 (2) RCR (Crl.) 647 and Varinder Singh alias Shiv Kumar Vs. State of Haryana and others, 1998(2) RCR (Crl.) 372 in this regard. In Mukhtiar Singh vs. State of Punjab, 1997 (3) RCR (Crl.) 14, it was observed that the order passed by the Magistrate under Section 145 of the Code is an interim order and the Magistrate is competent to recall or rescind the order on being convicted by either of the parties and for that reason the petitioner should

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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first approach the Magistrate before approaching the High Court under Section 482 of the Code. On the other hand reference has been made on behalf of the petitioner to Labh Singh and another V. Jaswinder Kaur and others (supra); Ram Kumar V. State of Haryana, 1996(2) RCR (Crl.) 351; Surinder Singh Vs. State of Punjab, 1996(2) RCR (Crl.) 154, wherein it has been laid down that order of attachment being interlocutory order, revision against the same is barred under Section 397(2) of the Code. In this case the S.H.O had purposely not impleaded the petitioner and other co-sharers as parties to the proceedings. It is for that reason, the petitioner has been forced to invoke the jurisdiction of this Court under Section 482 of the Code and taking notice of these circumstances, the petitioner was not directed to invoke the jurisdiction of the revisional Court at the initial stage. Therefore, under the circumstances of the case the facts of the reported cases would not render any assistance to the controversy raised in the present petition.

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Moreover, the co-oridnate Bench of this Court has held

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that when there is dispute between the parties with regard to joint possession of land, remedy was to initiate proceedings by way of partition and dispute was not covered under Section 145 Cr.P.C. In paragraph 4 of the judgment in Kali Ram vs. State of Haryana

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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(supra) it was held as under:

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4. There is no factual dispute between the parties before me that land measuring 76 Kanals 6 Marlas fully described in the Calendera filed by the SHO, Police Station, Madlauda (Annexure-2) was jointly owned by Kali Ram, Badlu Ram, Phul Singh, Bani Singh and Fateh Singh sons of Rati Ram as per entries of the Jamabandi for the relevant period. It is also not disputed before me that Sunil Dutt had purchased 11 Kanals of land as per sale deed bearing Vasika No. 92/1 dated 11.10.2001 from Bani Singh, who is recorded as one of the co-sharers in the total land. Mutation No. 1517 has also been sanctioned in the name of Sunil Dutt thereafter. The dispute as per parties arrayed in the Calendera, namely, Sant Ram and Sunil Dutt, party No. 1 and No. 2 respectively arose because Sunil Dutt claimed that after purchase of the land he had cultivated and sown the crop on the land comprised in Killa No. 96/24 min east (3-0), 25(8-0) measuring 11 Kanals in all and the rest of the land had been lying vacant at the spot and thus the first party had never cultivated the same. This stand was disputed by the first party as it was asserted by him that he had been in possession of the disputed land and the sale deed is a forged document. It was also not disputed

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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Crl.Misc.No.M-27039 of 2009 (O&M)

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before me that civil Suit No. 143 of 2002 dated 17.5.2002 was pending in the Court of Additional Civil Judge (Senior Division), Panipat which had been filed by Kali Ram, plaintiff against Sunil Dutt Badlu Ram, Phul Singh, Fateh Singh and Bani Singh, arrayed as defendant Nos. 1 to 5 respectively. In the said case, defendant Nos. 2 to 5 were proceeded ex parte on 24.5.2002 while defendant No. 1 refused to accept the service. The case was posted for 8.6.2002 and the parties were directed to maintain status quo regarding the possession over the suit property. It was not disputed that order of status quo is still in operation. In this suit the plaintiff had claimed the relief of permanent injunction against the defendants. The copy of the plaint of that suit had not been placed on record by either of the parties before me.

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After going through the judgment passed by this Court, it is not disputed that the petitioners were owners in cultivating possession of the land in question along with other co-owners. Therefore, appropriate remedy was to file partition proceedings and the proceedings wrongly initiated under Section 145 Cr.P.C orders Annexure P-7, Annexure P-8 and Annexure P-9, quashed.

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Criminal miscellaneous allowed.

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September 18, 2013 savita

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(RITU BAHRI) JUDGE

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Kadian Savita 2013.09.25 10:38 I attest to the accuracy and integrity of this document High Court Chandigarh

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