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IN THE HIGH COURT OF ALLAHABAD
S. K. PHAUJDAR
NEELAM SINGH - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. MISC. APPLN. 2656 Of 1998
Decided On : 08/10/1998
CRIMINAL PROCEDURE CODE - SECTION 145 - POSSESSION DISPUTE - JURISDICTION OF MAGISTRATE - STATUS QUO ORDER BY CIVIL COURT - ATTACHMENT ORDER UNDER SECTION 146(1) - VALIDITY.
Fact of the Case:
A dispute arose over the possession of a property between the applicants and the opposite parties. The applicants claimed to be co-owners of the property and had entered into an agreement with the opposite parties for joint development. However, the agreement did not materialize due to failure of payment of consideration. The applicants then moved the Delhi High Court for arbitration, and the opposite parties filed a civil suit in Nainital. During the pendency of these proceedings, the opposite parties filed an application under Section 145 of the Code of Criminal Procedure (CrPC) for a proceeding to resolve the dispute regarding possession. The Sub-Divisional Magistrate (SDM) issued a preliminary order under Section 145, CrPC, and subsequently passed an attachment order under Section 146(1), CrPC. The applicants challenged the proceedings before the SDM and the attachment order in the High Court.
Finding of the Court:
The High Court held that the SDM had jurisdiction to initiate proceedings under Section 145, CrPC, as there was an apprehension of breach of peace over the possession of the property. The Court also held that the civil court's order for maintaining status quo did not bar the SDM from taking up the proceedings, as the order did not indicate who was in actual possession and who was to be restrained from disturbing the possession of the other. However, the Court quashed the attachment order passed by the SDM, holding that it was not justified in view of the status quo order passed by the civil court.
Issues: 1. Whether the SDM had jurisdiction to initiate proceedings under Section 145, CrPC, in view of the pendency of a civil suit and an order for maintaining status quo passed by the civil court? 2. Whether the attachment order passed by the SDM under Section 146(1), CrPC, was valid.
Ratio Decidendi: 1. The Magistrate has jurisdiction to initiate proceedings under Section 145, CrPC, if he is satisfied from a report of a police officer or from 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. The Magistrate is not required to refer to the merits of the claims of any of the parties to a right to possess the subject of the dispute. The Magistrate is simply to look to the actual physical possession and that too on the date of the preliminary order. 2. An attachment order under Section 146(1), CrPC, cannot be passed if there is a status quo order passed by a civil court in relation to the possession of the property.
Final Decision: The High Court quashed the attachment order passed by the SDM under Section 146(1), CrPC, and directed that the proceedings under Section 145, CrPC, before the SDM shall go on and shall be concluded at the earliest. The Court also directed that the parties shall maintain status quo as on the date of the status quo order passed by the civil court till a decision is arrived at by the Magistrate under Section 145(6) Cr. P. C.
( 1 ) THE present application under S. 482, Cr. P. C. was filed on 22-7-1998 for quashing the proceedings initiated at the instance of the opposite party under S. 145, Cr. P. C. now pending in the Court of Sub-Divisional Magistrate, Nainital, as also for quashing an order under S. 146 (1), Cr. P. C. directing attachment of the property in question and dispossession to thepresent applicants from the premises. There was a further prayer that the proceedings in question in case No. 11/24 of 1998 be stayed during the pendency of the present proceedings.
( 2 ) WHEN the matter came up as a fresh one on 23-7-1998 appearance was made for the opposite parties by Sri R. K. Sinha. The learned counsel for the applicants S/sri Dinesh Dwivedi and S. D. Kautilya and Sri R. K. Sinha, learned counsel for the opposite parties, were heard and the matter was directed to be listed on 18-8-1998. There had been an interim order, the order of attachment under S. 146, Cr. P. C. was stayed.
( 3 ) SUBSEQUENTLY, on 4-8-1998 another petition was moved with a prayer for calling for the records of Criminal Revision No. 93 of 1998 and the aforesaid Criminal Case No. 11/24 of 1998 and to quash the judgment of the Sessions Judge, Nainital, whereby the above mentioned revision application filed by the present applicant was dismissed. Further prayer was made to quash the S. 145, Cr. P. C. proceedings itself. Copy of this application was served on Sri Sinha and the matter was directed to be put up on 6-8-1998.
( 4 ) ON this date counter-affidavit was filed not only against the original application under S. 482, Cr. P. C. but also against the petition dated 4-8-1998 a prayer for vacation of the stay order was also made. The applicants came up with a prayer for modification of the stay order dated 23-7-1998 requiring stay of the proceedings before the Court below and for a direction not to release the disputed property in favour of the opposite parties. This prayer was also made with a counter-affidavit and the learned counsel were heard.
( 5 ) THE impugned proceedings under S. 145, Cr. P. C. were initiated on the application of the present opposite party and the complainants asserted before the Courts below that they had purchased about 4000 square yards of land in the well known Cliffton Oaks Estate, Ayarpatta, Nainital, for valuable consideration, from its owner through a registered sale deed. The present applicants (shown as opposite parties in the Court below) had entered into agreement for purchase of 50 per cent of the said land on a consideration of nine and half lacs. The transaction did not mature for failure of payment on consideration. The present applicants thereafter moved the Delhi High Court for making a reference of the dispute to an arbitrator. The petition was contested by the complainant. During the pendency of the proceedings before the Delhi High Court a prayer was made under S. 41 of Arbitration Act for a restraint order against the complainant from demolishing or dismantling any existing structure, from raising any construction of cottages and from entering into any agreement for the disposal of any construction or any non-constructive area by any means of alienating. There had been an interim order by the Delhi High Court restraining the complainants from entering into any agreement for disposal of the cottages or any construction on the suit property. This interim order was passed in 1994 and the matter is still subjudice before the Delhi High Court.
( 6 ) THE complainants claim that they continued to carry out construction on the property and had let out two cottages on temporary lease to a certain company. Knowing that the cottages have been completed, the present applicants moved the Delhi High Court and sought an injunction that the complainants should not let out or part with the possession of the property in favour of any other person.
( 7 ) IT was further alleged that on 4-6-98 the present applicants Neelam Singh a
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