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Bahori Lal v. State Of U.P. Thru' Secy. Lko. And Others - CRIMINAL MISC. WRIT PETITION No. - 10556 of 2004 [2007] RD-AH 18297 (27 November 2007)

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Criminal Misc. Writ Petition No.10556 of 2004

Bahori Lal Vs. State of U.P. through the Chief Secretary, U.P. Govt. Lucknow & Ors.

Hon. A.K. Roopanwal, J.

This criminal writ petition is directed against the orders dated 5.8.04 and 6.11.04 passed by the courts below.

Vide order dated 5.8.04 the Up Zila Magistrate, Khair, District Aligarh in proceedings under Section 145, Cr.P.C. between the parties found that the petitioner is in illegal possession over the disputed property and is liable to be evicted. He, then ordered for his eviction. Against the order dated 5.8.04 revision no.431/04 was filed by the petitioner which was dismissed by the Special Judge/Additional District Judge, Aligarh vide order dated 6.11.04.

It appears from the facts of the case that dispute over a Dharamshala situated in village Fatehpur, Tahsil Khair, District Aligarh arose between the parties. Respondent no.4 and others claimed their ownership and possession over the property in dispute while the petitioner claimed that he is the owner and in possession of it. The police submitted the report dated 4.7.01 to the effect that there was an apprehension of breach of peace on account of this Dharamshala, hence, the Executive Magistrate issued preliminary order under Section 145(1), Cr.P.C. on 16.7.01 calling upon the parties to put in written statements of their respective claims as respect facts of the actual possession of the subject of dispute. Both the parties filed their written statements. Respondent no.4 examined Rishal Singh, Nawab Singh and himself while the petitioner examined Prasadi Lal, Ved Ram and himself. The Magistrate concerned after perusal of the statements of the witnesses as well as the evidence on record found that the petitioner had obtained illegal possession over the disputed premises and is not entitled to retain that possession. He, therefore, ordered vide order dated 5.8.04 that he be evicted from the premises in dispute.

Against the order dated 5.8.04 the petitioner filed revision no.431/04 which also went against him on 6.11.04, hence, he has come here in the writ petition.

I have heard learned counsel for both the sides and perused the record.

It has been argued by learned counsel for the petitioner that the orders passed by both the courts below are not well within the spirit of Section 145, Cr.P.C. and therefore, these orders are liable to be set aside. According to the learned counsel the trial court did not decide the possession as per provision of Section 145, Cr.P.C. and therefore, this order was patently bad and by endorsing the same order the revisional court also passed an improper order. Learned counsel for the other side supported the judgment.

Before analysing the judgment of the trial court, I would like to refer the provision of Section 145, Cr.P.C. It runs as follows.

1.Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

2. For the purposes of this section, the expression "land or water" includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

3.A copy of the order shall be served in the manner provided by the Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

4.The Magistrate shall then, without reference to the merits or the claims of any of the parties, to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any as he thinks necessary, and, if possible, decide whether and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).

In view of the above, it is very much clear that under Section 145, Cr.P.C. where dispute concerning an immovable property arises, the Executive Magistrate shall, if possible, decide as to which of the parties was at the date of the preliminary order passed under Section 145(1), Cr.P.C. was in possession of the subject matter. Nothing more can be looked into or decided by the Executive Magistrate.

A look at the impugned order dated 5.8.04 passed by the Up Zila Magistrate, Khair would clearly reveal that the Magistrate did not decide as to which party was in possession on the date of the preliminary order. The Magistrate opined that Dharamshala was constructed by first party. This could not be the matter to be decided by the Executive Magistrate as to who built the subject matter or who is the owner of it. He was only required to decide as to which party was in possession of the disputed property on the date of the preliminary order. As it was not done, hence, the order is an illegal order being not in conformity with the provisions of Section 145, Cr.P.C. When the order passed by the Magistrate was an improper order, it should not have been confirmed by the revisional court and because it has been confirmed, hence, the revisional order is also liable to be set aside.

Thus, in view of the above, I find both the orders liable to be set aside and the matter liable to be sent back for afresh decision by the Magistrate concerned.

Writ petition is allowed. Orders dated 5.8.04 and 6.11.04 are, hereby, set aside. The matter is sent back to Up Zila Magistrate, Khair, District Aligarh with the direction to decide it afresh strictly within the purview of Section 145, Cr.P.C. after affording an opportunity of hearing to the parties. The Magistrate shall see that matter is decided positively within 45 days from the date of the receipt of the order in that court.


T. Sinha..


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