The Magistrate's authority to attach property under Section 145 and Section 146 of the Code of Criminal Procedure is based on the satisfaction of the apprehension of breach of peace and remains in existence only until the determination of the rights by a competent Court.

ASHUTOSH KUMAR, J.

1. The petitioners have impugned the order dated 14.08.2015 passed by the learned SDM, Vasant Vihar, in a proceeding vide No.SDM/VV/3405 whereby plot No.B-239 measuring 150 sq.yards (Khasra No.1049-1050) in Vasant Kunj Enclave, Village Malikpur Kohi @ Rangpuri, New Delhi has been attached until the determination of the rights of the parties thereto by a competent Court. By the same order, the SHO of the police station Vasant Kunj (South) has been appointed as a receiver of the plot who has been directed to ensure that no construction or any other activity takes place on the said plot and to hold the property under attachment until a decree or order of the competent Court determining the rights of the parties, is passed.

2. Respondent No.2, Manpreet Singh lodged a complaint on 11.06.2015 before the SDM, Vasant Vihar, alleging that despite his possession over plot No.B-239 in Vasant Kunj Enclave, efforts are being made by the petitioners to encroach upon the said land. It was further alleged that earlier also complaints were made with the police but such complaints went unheeded. The immediate cause of approaching the Magistrate was stated to be an attempt to construct a boundary wall and gate along with a room by the petitioners. Hence it was requested that a proceeding under Section 145 of the Code of Criminal Procedure be initiated. On the registration of the aforesaid complaint, it was directed to be posted for consideration on 12.06.2015. The petitioners and the sub Inspector of the Vasant Kunj (South) police station were noticed by the learned SDM. The records reveal that the proceedings could not be conducted for some reason or the other and on 14.07.2015 the petitioners and the officer incharge of the concerned police station were directed to submit all documents pertaining to the case and the matter was posted for 17.07.2015. The matter was kept on being adjourned till 28.07.2015 when the learned Magistrate noted the appearance of the counsel for the petitioners and the respondent No.2. The case was reserved for orders. Thereafter on 14.08.2015, the impugned order was passed.

3. It has been argued on behalf of the petitioners that by the order impugned, the property has been attached without recording any satisfaction regarding existence of any dispute which is likely to cause breach of peace. It has been submitted that no order of attachment under Section 146 of the Cr.P.C could have been passed without the preliminary order under Section 145(1) of the Cr.P.C. It has further been argued on behalf of the petitioners that assuming but not admitting that the order impugned was a composite order under Section 145 and 146, what the learned Magistrate has recorded is only a possibility of breach of peace in view of construction of a boundary wall and a gate.

4. The order is sought to be assailed on factual aspects as well viz. despite the availability of ample documentary evidence regarding the actual physical possession of the petitioners, the order of attachment has been passed. That apart, even the police report indicated that the plot in question (B-239, Vasant Kunj Enclave) was purchased by the petitioners in 2007 from one Anita Garg and since then the petitioners are members of the RWA of Vasant Kunj Enclave and that the allegations leveled by the respondent No.2 are false and unsubstantiated.

5. In response to the aforesaid proposition of the petitioners, learned counsel appearing for the respondent No.2 has stated that the satisfaction regarding the apprehension of breach of peace was recorded by the learned Magistrate as mandated under Section 145(1) of the Cr.P.C and no fault could be found with the composite order of the Magistrate, attaching the plot. It was further argued that respondent No.2, in his complaint before the Magistrate, had clearly stated that over the plot in question, the respondent No.2 was in possession till the morning of 11.06.2015, when he was forcibly dispossessed by