PRADEEP TYAGI Vs. STATE

JUDGEMENT

(1.) THE acts giving rise to this revision petition which is directed against order dated 26th August, 1983 of an Additional Sessions Judge setting aside the order of the Sub-Divisional Magistrate dated 22nd January, 1983 passed under Sections 145(1), Code of Criminal Procedure (for short the Code), succinctly are that respondents 2 to 8 are sons of late Shri Bhagwan Dass. They are residents of village Chawla and they owned land comprised in reconsolidation khata No. 84 situated within the revenue estate of the said village, jointly with Shri Pyare and Surte, sons of Shri Kanahia, their share in the said land being 3/4th and the share of Pyare and Surte being 1/4th. Long back Pyare and Surte started residing in a village, in District Rohtak and therefore, respondents 2 to 8 continued to be in cultivatory possession of the same. At the time of consolidation of holdings, the land allotted in lieu of the land comprised in khata No. 84 was spilt into two portions, one block having been allotted to respondents 2 to 8 and the other block having been allotted in the shape of plots to Surte and Pyare. The land allotted to Surte and Pyare comprised khasra Nos. 621/2(0-11) and 578(1-1). Partition of the land so allotted into two blocks was opposed tooth and nail by respondents 2 to 8 who contended that Surte and Pyare having left the village Chhawala since long they alone were entitled to the entire land allotted in lieu of preconsolidation land. Moreover, they asserted that the land so allotted could not be spilt into two blocks without their consent as per policy laid in the scheme of consolidation of holdings. Having met with no success at the level of Consolidation Officers they went in revision under Section 42 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948, as extended to the Union Territory of Delhi. The said revision petition was heard and rejected by Shri D.K. Das Financial Commissioner, Delhi, vide his order dated 14th May, 1982. It is contended by the respondents that they have filed a Writ petition against the said order and the same, having been admitted, is still pending in this Court. The petitioner Pardeep Tyagi is the General Attorney of Smt. Renu Singh who allegedly purchased khasra No. 621/2 measuring 11 Biswas from S/Sh Pyare and Surte vide registered sale deed dated 1st September, 1982. Claiming that her was in possession of the said land (now the dispute) as a Care Taker on behalf of the vendee, he made complaint to the Sub-Divisional Magistrate, Punjabi Bagh, on 17th January, 1983, initiating proceedings under Section 145 of the Code. He contended that the opposite party, viz. respondents 2 to 8 in collusion with officials of the Police Chowki were threatening to disposses him by resort to use of force and committing trespass. An attempt made by them in this direction a few days earlier was, however, foiled but the opposite party was out to commit breach of peace, and had hurled threats of commission of murder and other crimes to achieve their object.

(2.) THE Sub-Divisional Magistrate, on receipt of the said complaint, called for a report from the concerned SHO and the latter submitted his report on 18th January 1983. He, inter alia, stated that respondents 2 to 8 wanted to occupy the plot illegally and forcibly as they claimed the same to their ancestral property and contended that Surte and Pyare had no right to sell the piece of land in dispute. On receipt of the said report to Sub-Divisional Magistrate made an order on 20th January, 1983, that both the concerned parties be informed to appeal before him on 22nd January, 1983 and they be also directed to maintain status quo till further orders. Accordingly, both the parties appeared before the Sub-Divisional Magistrate on 22nd January, 1983 when the respondents 2 to 8 sought an adjournment for filing a reply. The request was, however, opposed by the petitioner on the ground that the respondents were interested in delaying the matter. So, after hearing the petitioner and pursuing the police report etc he was satisfied that sufficient reasons existed for making an order under Section 145(1) of the Code. Accordingly, he drew up a preliminary order assuming jurisdiction in the matter under section 145(1) of the Code. He also made an order of attaching the property in question under Section 146 of the Code on the ground that the police report indicated that the situation was such as to render the attachment necessary and that the applicant too was feeling absolutely helpless in resisting any incident of breach of peace at the hands of the respondents who were six in number.

(3.) THE learned counsel for the petitioner has, at the outset, made a valiant effort to canvass that the impugned order should be construed as quashing only the order of attachment made by the learned Sub-Divisional Magistrate under Section 146 and not the preliminary order made by him under Section 145(1) of the Code. It is for the reason that the learned Additional Sessions Judge has specifically upheld the legality and the propriety of the order under Section 145 (1) in paragraph 4 of the impugned order. On a consideration of the matter, I am not persuaded to accept this proposition. It is for the simple reason that the impugned order in terms set aside order dated 22nd January, 1983, which will naturally imply that the order as a whole stands set aside. It is true that two separate orders one under Section 145(1) and the other under Section 146 were drawn up by the learned Sub-Divisional Magistrate consequent upon the impugned order dated 22nd January, 1983 but the seep of the order under revision is so wide as to cover both the said orders.