Writ Petition No.9361 of 2011 of ALLAHABAD HIGH Court

Cops Review on Allahabad High Court Security Cover:

Officials of the district police, Central Reserve Police Force and Local Intelligence Unit on Sunday reviewed the security of outer cordon of the Allahabad high court.

Speaking to TOI, superintendent of police (city) Subash Singh Baghel said, "We have apprised our cops about their roles and responsibilities and what measures they have to take, in an emergency like situations," he said adding that it was a routine exercise and officials of district police, CRPF and LIU discussed about the security plans.

SP also added that cops have been briefed about the measures especially those posted at entry/exit points. He said that cops were also told about the importance facts that are useful in strengthening in outer cordon security status. Station officers of seven police stations also attended the security briefings.

Other officials including DSP, LIU, Ramjeet Ram, DSP (Civil Lines) Ashutosh Mishra and Assistant Commandant of CRPF were present in the meeting.

Judgement of Criminal Miscellaneous Writ Petition No.9361 of 2011

Smt. Bala Dhama & others.................................Petitioners
Versus
Sub Divisional Magistrate, Baraut & others.........Respondents.


Hon'ble Vinod Prasad, J.

Family of Suresh Pal Petitioner no. 3,his wife Smt. Bala Dhama, petitioner no.1 and minor son Vijay Kumar petitioner no.2, have preferred instant writ petition under Article 226 of The Constitution of India praying for issuance of a writ of certiorari quashing the impugned orders dated 23.4.2010 passed by Sub Divisional Magistrate, Baraut, district Baghpat in Case No.81 of 2008, Smt. Saroj Dhama Vs. Suresh Pal and others, under Section 145 Cr.P.C., annexure no.25 and lower revisional court's order dated 20.4.2011 passed in criminal revision no. 54 of 2010, Smt. Bala and others versus State of U.P. And Others recorded by Ist Additional Session's Judge, in respect of immovable properties situated in village and P.S. Binauli district Bagpat. By the impugned orders, S.D.M. Baraut district Bagpat, respondent no.1, had ordered both the contesting sides to get their rights decided by competent civil court and till such determination has kept the disputed properties under attachment U/s 146(1) Cr.P.C. since he was unable to determine possession of either side since two months prior to the passing of preliminary order from the oral and documentary evidences led by both the parties. Ostensibly attachment was continued to maintain peace at the spot/ disputed properties consisting of plot Nos.439 area 0.5480 hectare,no. 455 area 1.2320 hectare,no.458 area 0.1120 hectare, and no. 460 area 0.6980 hectare, in all four plots having total area of 2.590 hectare situated in village Binauli. S.D.M. Bagpat further directed receiver to submit at regular intervals accounts of income and expenditures. By such an order he has dropped 145 Cr.P.C. proceedings.
Petitioners unsuccessfully challenged S.D.M.'s order before Session's Judge, Bagpat in criminal revision No. 54 of 2010 Smt. Bala Dhama and others Vs. State of U.P. and others, as Ist Additional Session's Judge, Bagpat dismissed their revision by impugned order dated 20.4.2011.
Back ground facts as revealed from the pleadings and annexures appended with the writ petition indicates that on an application by Smt. Saroj Dhama wife of Budh Prakash, Tehsildar Baraut submitted a report to respondent no.1 on 3.10.2008, in respect of immovable properties situated on plot nos.439, 455, 458, 460 having areas of 0.5480, 1.2320, 1120, 0.698 hectares respectively, and on that basis proceedings U/S 145 Cr.P.C. was initiated by S.D.M., Baraut on 7.10.2008 by passing a preliminary order and registering criminal case no. 81 of 2008, Smt. Bala and others versus Suresh Pal and others vide annexure no.5. It was revealed in the said report by Tahsildar that over those plots co sharers were litigating since long. In 145 Cr.P.C. proceedings first party consisted of by Smt. Saroj Dhama whereas the second party were petitioners. Array of parties coupled with copy of plaint of O.S. no. 161 of 2000, Smt. Bala Dhama versus Smt. Saroj Dhama, annexure no. 3, indicate that the dispute is between step mother on the one side and step son and his family on the other. After passing of preliminary order, on the basis of report by the authorities dated 1.10.2008, vide annexure no.4, immovable properties of plot No.s 439,455,458,460 were attached under Section 146(1) Cr.P.C. by respondent No.1 vide his order dated 15.10.2008 which order vide annexure no. 7. Suresh Pal and others was challenged alongwith order in criminal revision no. 113 of 2008, Suresh pal and others versus Smt. Saroj and others vide annexure no. 8, but their attempt remained unsuccessful as their said revision was dismissed by the Session's Judge, Bagpat on 11.2.2009 vide annexure no. 9.
After their appearance in court, second party filed their objection on 16.2.2009 and their written statements on 17.12.2009 and 18.1.2010. They pleaded that on the basis of manipulated reports, in connivance with Tehsildar, 145 Cr.P.C. proceedings was initiated and an ex-parte order of attachment was also passed on 15.10.2008 attaching plots in question. In respect of same immovable properties a civil suit O.S. No. 116 of 2000 was already pending since 30.5.2000 before Civil Judge(JD), Bagpat in which relief of injunction was sought and consequently proceedings U/S 145 and 146 Cr.P.C. could not have been initiated and continued. Second party therefore prayed that both the orders drawing the proceedings and attachment be withdrawn and 145 Cr.P.C. proceedings be dropped. It was also pleaded that since property in dispute are joint holdings of co sharers hence 145 proceedings can not be drawn. It was also objected that Budh Prakash, who was the father of the second party Suresh Pal and husband of first party Smt. Saroj Dhama, had expired ten or eleven years ago and from a dead person there cannot be any apprehension of any breach of peace and therefore late Budh Prakash has been wrongly impleaded as a litigating party. Another objection by second party was that Master Vijay Kumar was also arrayed as a party albeit he was only six years of age and from him there could not have been any apprehension of breach of peace. There has been no partition between first and second party of the properties in dispute by meats and bounds and hence 145 Cr.P.C. proceedings can not be commenced. One third portion of the property was bequeathed to Vijay Kumar by adoption deed and, on the basis of will, Smt. Bala Dhama guardian of Vijay Kumar, she and Vijay Kumar both came in possession and therefore, the property under their possession consist of two third portion of the same. Second party, petitioners here, further objected that on the disputed agricultural land neither the name of Saroj Dhama respondent No.4 is recorded nor she had taken recourse to civil court for execution of her rights. Saroj Dhama is second wife of late Budh Prakash and she and her son Subodh Kumar Dhama, respondent no.3 are not a legal heirs of late Budh Prakash. It was specifically pleaded that property is a joint property and without any partition being taken by meats and bounds no one 145(1) and 146(1) Cr.P.C. proceeding could have been initiated.
During 145 Cr.P.C. proceedings, to substantiate her claim first party Smt. Saroj Dhama on 6.7.2009 and 16.4.2010 examined herself and Vineeta Dhama as P.W.1 and P.W.2 respectively. In her deposition Smt. Saroj Dhama P.W.1 testified that the disputed property belonged to late Ganga Ram having three sons. She got the property from late Budh Prakash through a will. Presently a scheduled castes person Sukhveer have trespassed over the land but added that he was appointed receiver over those properties. She however, admitted that the properties are joint properties and over the same name of Budh Prakash, Dharamveer, Vijay Dhama have also been mutated. She further deposed that late Budh Prakash had bequeathed her ten bighas of land. Bala Dhama is claiming her right over immovable properties on the basis of will executed by Ganga Ram regarding which a case is also pending. She further testified that adoption deed of Ranveer is also sub-judice before the court in a proper proceeding. She,however, admitted that her name has been ordered to be scored out from the record of properties in question by the S.D.M., Bagpat. Besides depositions by PW-1, S.D.M., Bagpat also received documentary evidences filed by first party including electricity connection bills, irrigation of the field with tube well receipts and payment of money receipts for establishing boring machine etc.
P.W. 2 Vineeta Dhama in her testimony stated that receiver Sukhveer is now cultivating the land and prior to him Smt. Saroj Dhama wife of Budh Prakash was doing agriculture on it. She further testified that Budh Prakash is father of Suresh Pal whereas Bala Dhama is his wife but they do not live in the village. Budh Prakash was an Inspector in the police force. Preetam Kaur was the mother of Suresh Pal but she could not state when Budh Prakash had married with Smt.Saroj Dhama. There are other statements referred to by the S.D.M. in the impugned order, which are eschewed from being mentioned for the sake of convenience.
Second party in their defence examined Smt. Bala Dhama, Suresh Pal and Kripal Singh on 9.3.2010 and 25.3.2010 who all supported the case of the second party. Theses evidences have been referred to by the S.D.M. in its impugned order and hence are not detailed hereunder. How ever second party also admitted that the disputed property initially belonged to Ganga Ram. Smt. Bala Dhama testified that Ganga Ram had executed a will in respect of agriculture land and one third portion of his residential house to her but in that respect mutation proceeding is pending. She further stated that after demise of Ganga Ram name of Budh Prakash and Ranveer were mutated over the property. Ranveer had adopted Vijay Kumar through an adoption deed and on that basis, after demise of Ranveer, name of Vijay Kumar was mutated over the portion of property falling in his (Ranveer) share. She further deposed that late Budh Prakash had solemnised two marriages and from the first wife, her husband was born. Smt. Saroj Dhama was not his legally wedded wife and was living with him in a living relationship. She further deposed that on the disputed property she is in possession and so far as tube well is concerned it is a joint property of herself and Vijay Kumar. She further testified that Smt. Saroj Dhama had manufactured a sham will deed of Budh Prakash regarding which a civil suit is pending. She has got no electricity connection over the land nor she resides in the village. Presently, the property is under custodia legis and the disputed land consist of four agricultural fields. She further testified that on the disputed plots she is the exclusive owner which they have got from Ganga Ram. She further testified that she does not know Saroj Dhama and Preetam Kaur was the wife of Budh Prakash, who had already expired. She further deposed that after demise of Preetam Kaur, Budh Prakash never solemnised another marriage. She further testified that since 1998, she has been paying land rent. There are other statements given by this witness. Suresh Pal Dhama D.W.2 and third witness DW3 Kripal Singh also supported second parties claim and their version.
After entering into critical appreciation of evidences led by both the sides, summation of facts, marshalling and analysis of documentary evidences, S.D.M., Bagpat arrived at conclusions that(i) primarily dispute in between the parties were regarding will executed by late Budh Prakash, adoption deed executed by Ranveer Singh and will executed by Ganga Ram. (ii) documents submitted by both the sides were relatable only to ownership and not possession and ownership could not have been decided by him in the instant proceeding(iii) on certain issues there were contradictory irreconcilable evidences(iv) adoption deed was scribed on 28.12.1991 but the same was shown to have been registered a day prior on 27.12.1996(v) will executed on 13.7.1998 mentioned that Budh Prakash was married with Preetam Kaur having a son Suresh Pal and Preetam Kaur had expired (vi) many incongruent contradictory evidences were led by both the sides about the same aspect of the matter(vii) none of the parties have been able to establish as to on what and how much portion they were in exclusive possession(viii) bank pass-books, electricity bills etc. does not establish possession of either side(ix) genuineness of various receipts filed by the second party were doubtful.
For the above reasons S.D.M., Baghpat was unable to decide and determine exclusive possession of either side two months prior to issuance of preliminary order and hence he concluded, vide his impugned order dated 23.4.2010, that none of the parties were able to substantiate it's claim and establish its de facto possession over the properties in question and therefore, directed both the parties to get their respective rights and title decided from a competent court and meanwhile, for maintaining peace at the spot, ordered that till determination by competent court disputed properties shall remain under attachment. He further directed the receiver to furnish at regular intervals income and expenditure accounts.
Bala Dhama second party and others challenged S.D.M., Bagpat's order in Criminal Revision No.54 of 2010, before Sessions Judge, Baghpat but the lower revisional court/ Ist Additional Session's Judge, Bagpat also concurred with S.D.M.'s view and finding his order infallible dismissed the revision filed by Smt. Bala Dhama and other vide its impugned judgement and order dated 20.4.2011. Hence this writ petition.
I have heard Sri M.A. Qadeer learned Senior Counsel appearing on behalf of petitioner, Sri K.N. Bajpai learned AGA on behalf of the respondent-State and have perused the entire material available on the record of the writ petition.
Castigating impugned order, petitioner's counsel submitted that since civil suit was pending in between parties prior to date of issuance of preliminary order, 145 Cr.P.C. proceedings should not have been commenced by S.D.M. who lacked jurisdiction to enter such a dispute. Various contentions were raised before S.D.M. which he completely eschewed from being decided regarding maintainability of 145 Cr.P.C proceeding. Once proceeding U/S 145 Cr.P.C. was commenced by drawing of preliminary order, it was incumbent upon S.D.M. to decide the question of possession two months prior to passing of the preliminary order instead of keeping the entire proceeding in a lurch submitted learned counsel. Further it was argued that property was a joint property and, therefore, 145 Cr.P.C. proceeding could not have been initiated when no partition in between joint tenants and owners had taken place by meats and bounds and under such facts , when S.D.M. was unable to decide exclusive possession of any of the sides he should not have continued with proceedings and should have dropped it. On such contentions wrapping up his arguments, Sri Kadir contended that writ petition be allowed and both the impugned orders vide Annexure Nos. 25 and 26 to the writ petition be set aside.
Sri K.N. Bajpai, learned AGA per contra submitted that there was no lack of inherent jurisdiction with the S.D.M. to initiate proceedings under Section 145 Cr.P.C. when prima facie he was satisfied that report of Tehsildar projected imminent breach of peace and dispute being ensued regarding immovable properties. It was because of public policy that apex court had laid down the law that two parallel proceedings should not be permitted once the parties to a lis were in a position to get their rights and title regarding immovable properties decided from a court of competent jurisdiction. It was because of this reason that supreme court laid down the law in Ram Sumer Puri Mahant Vs. State of U.P.: AIR 1985 427 that once parties are litigating in civil court, parallel proceedings should not be allowed to go on. Another reason for taking such a view by the apex court was that an order passed by civil court is binding on criminal court in respect of ownership and possession and, therefore, if parties can get their right decided by a court of competent jurisdiction in respect of ownership or possession then question of possession two months prior to the date of passing of preliminary order in an emergency proceedings U/S 145 Cr.P.C. with limited scope should not be permitted and parties should be relegated to get relief from the civil court. It was next argued that in the present case, S.D.M. has passed a final order under Section 146(1) Cr.P.C. and has finally judgmented the proceedings and therefore, ratio decidendi of Ram Sumer Puri Mahant's case and all subsequent decisions by Hon'ble Apex Court and by this Court are of no use. Learned AGA submitted that it is too late in the day to accept petitioner's submissions as he whole heartedly participated in the entire proceeding and led their full evidences. Now petitioners can not be permitted to approach this Court raising objections regarding maintainability of proceedings after it's final termination. Such an exercise by the petitioner should be discouraged. More over S.D.M., when was unable to decide exclusive possession rightly took recourse to a right procedure by relegating both the sides to competent crime court. This was all the more desired if properties were a joint properties. To abjure breach of peace, he rightly kept the properties under attachment U/S 146(1) Cr.P.C. while dispatching both the parties to civil court. Learned AGA further submitted that dispute was rightly held to be civil in nature in respect of various Wills and adoption deed executed by various persons entitling the person to claim ownership and possession on the basis of those documents and it is only the competent civil court which could have decided such a dispute and, therefore, both impugned orders do not suffer from any error of law and must be upheld. Concludingly State counsel submitted that instant writ petition lacks merit and be dismissed.
I have given due consideration to the rival submissions and have pondered over documentary evidences appended with the writ petition and have considered various facts and circumstances of the case decisions cited by both the sides.
From perusal of the impugned orders what is culled out is that step mother and her son on one side as first party and step son and his family on the other side as second party are ligating in respect of various properties which admittedly belonged to one Ganga Ram. In respect of that very property, both sides are litigating in civil court as well in O.S. No. 116 of 2000 in a suit for injunction where possession of plaintiff and defendant can be gone into by the civil court. Adoption deed and Will, on the basis of which second party, petitioners, claim possession over property in dispute are sub judice in a proper suit and are under challenge. From evidences of both the parties, S.D.M. was unable to decide exclusive possession of any of the parties, as oral and documentary evidences produced by either of them, were relatable, relevant and germane only to decide question of ownership and not of possession. S.D.M. took note of the fact that in proceedings under Section 145 Cr.P.C. what can be decided by him is only exclusive possession over the landed immovable properties in question two months prior to the date of passing of preliminary order and question of ownership is beyond the scope of his power. This view by the Sub Divisional Magistrate is in consonance with law. While judging de facto possession question of ownership could have been incidentally looked into by the S.D.M. But he could not have decided the question of title and ownership of landed agricultural plots as that right is vested with the civil court. 145 Cr.P.C. proceedings are emergency proceedings only to curb apprehension of breach of peace. Consequently once S.D.M. was unable to decide exclusive possession of any of the sides on the basis of oral and documentary evidences led before him, he rightly acted under section 146(1) Cr.P.C. and for that impugned order can not be castigated. Lower revisional court also concurred with the findings recorded by S.D.M. Time and again, question of initiation and continuance of parallel proceedings has come up before Hon'ble Apex Court wherein Hon'ble Apex Court has opined that parallel proceedings should not be allowed to go on when parties can take recourse to the competent civil court for redressal of their grievances as civil court is the only competent court to grant such a relief but those decisions do not help either side in a concluded proceedings where the proceedings has been judgemented. Those decisions are available only where proceedings are continuing and/or are pending. This aspect can be judged from another angle. Petitioners argue that because civil suit was pending hence 145 proceedings should not have been instituted in view of the decision by the apex court but when the same order has been passed by the S.D.M. , they have approached this court for quashing of the same in the instant writ petition. In effect S.D.M. has ordered that which he should have ordered earlier, when factum of pendency of civil proceeding was brought to his knowledge.
Another insurmountable difficulty in petitioner's way is that they whole heartedly participated in 145 proceedings, led oral evidences of three Dws including petitioners no. 1 and 3 and tendered voluminous documentary evidences and it was only when they were unsuccessful to obtain possession order from S.D.M. that they started shedding crocodile tears and reuding about maintainability of the proceedings. They now want to rekindle an argument which is lost in oblivion. As doused fire of camphor can not be reignited,after it's fuming, similarly petitioners can not be permitted to raise such an objection which has lost all it's efficacy and thrust and is not available to them. It is too late in the day for them to challenge initiation of 145 Cr.P.C. proceedings and it's continuance. Aforesaid pleas were shut out for them long back.
Learned counsel for the petitioner relied upon a decision of this Court in Janjir Singh & others Vs. State of U.P. and others: 1997 (35) ACC 150 vide paragraph no.10 thereof wherein this Court has taken a view that mere pendency of civil suit is no bar for initiation of proceedings under Section 145 Cr.P.C. The aforesaid decision relied upon by the petitioner's counsel is no help to him as in the present case, impugned order passed by S.D.M. is a judgement/final order after conducting entire trial and looking into oral and documentary evidences led by either sides. Impugned order is not a preliminary order and it has finally decided case/proceedings under Section 145 Cr.P.C. conclusively. The order passed by S.D.M. is in consonance with Section 146(1) Cr.P.C. and cannot be castigated only for the reason that Magistrate was unable to decide which of the parties was in possession over the properties in question.
From the above discussions writ petition seems to be devoid of merits and hence is dismissed. There shall be no order as to cost.
Dt.22.7.2011