The exercise of discretion by a judicial or quasi-judicial authority should be reasonable and not arbitrary, and in cases of extreme emergency, an ex parte order may be made, but in other cases, a show cause notice should be issued and an opportunity of being heard should be afforded before making orders of attachment and appointment of receiver.

1. 1. In this Misc. Petition, the learned counsel has confined the arguments to the order of attachment and appointment of receiver of the land in dispute.

2. It will appear from the perusal of the Jamabandi (Annexure-I) that so far as Khasra No. 838 is concerned, Ramla Chamar and the complainant Gyarshi Lal are the joint tenants and each having half share in the land in dispute. Therefore as per the revenue record, Khasra No. 838 is in the joint tenancy of the petitioner Ramla as well as the non-petitioner No. 2 Gyarsilal. A report appears to have been filed in Police Station, Pragpura and after inquiry, the SHO Police Station, Pragpura filed a complaint before the learned Sub Divisional Officer Kotputli wherein though it was admitted that the land in dispute i.e. Khasra No. 838 and 740 were in joint tenancy of the petitioner and non-petitioner No. 2, but it is also stated that some land has been taken away for construction of the road and each of the party was in possession of separate part of the land. The learned Magistrate made an order under sub-section (1) of Section 145 Cr. P.C. on 23rd September, 1991 and on the next date i.e. 24 Sept. 1991 made an order of attachment of the subject in dispute and appointment of receiver.

3. There can be no dispute that the Magistrate has jurisdiction to attach the subject of dispute and to appoint a receiver, in case he considers the same is one of emergency. But there can be no dispute and the law is well settled that whenever discretion is conferred by statute on a judicial or quasi judicial authority shall exercise the jurisdiction reasonably and not arbitrarily. Though there is no provision under Section 146 Cr. P.C. that before the subject of dispute is attached and receiver is appointed, a show cause notice is necessary to, the party. This court has taken a view that only in such of the cases where a case of extreme emergency is made out, an ex parte order of attachment and appointment of receiver of the subject of dispute should be made, otherwise, a show cause notice should be issued for a short duration to the other side and after affording an opportunity of being heard the subject of dispute should be attached and appointment of a receiver should be ordered. In the instant case, it will appear that as already stated earlier as per the revenue record, the agricultural land in dispute was the joint holding of the parties, a question in such case always arises whether proceedings under Section 145 Cr. P.C. can be initiated. It was on 23rd September, 1991 that an order under sub-section (1) of Section 145 Cr. P.C. was made and on that date no order of attachment of the subject in dispute and/or appointment of a receiver was made. But surprisingly on 24th September, 1991 on the next date the impugned order was made only on the report of the S.H.O. In my opinion, it was not such a case where without issuing a show cause notice to the other side and without affording a reasonable opportunity of being heard an order of attachment of subject of dispute and/or appointment of receiver should have been made as the effect of such an order is always to oust the person in possession of immovable property.

4. Consequently, I hereby allow this misc. petition and quash the order dated 23rd September, 1991 passed by the learned Magistrate Kotputli in criminal case No. 4/91. The case is sent back to him and he will hear the parties and thereafter pass a fresh order, if any order under sub-section (1) of Section 146 Cr. P.C. if the same is necessary to be made in the facts and circumstances of the case in accordance with law. The parties are directed to present before the learned S.D.M. on 16th January, 1992. No fresh notice to the parties by the S.D.M. is necessary.Petition allowed - Case Remanded.

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