PAL SINGH Vs. RAJINDER MOHAN

JUDGEMENT

(1.) This is a petition under Section 482 Cr. P.C. filed by Pal Singh and two others, petitioners, with the prayer that the proceedings initiated under Section 145 Cr. P.C. on November 19, 1984 by Shri B. Vijayan, Sub Divisional Magistrate, Kotwali, Delhi and the preliminary order dated January 14, 1985, as passed by him under Section 145(1) be quashed. Rajinder Mohan respondent No. 1, is a co-sharer in a large property known as Chhunna Mal Building situated at Katra Neel, Chandni Chowk, Delhi. The property bearing Municipal Nos. 826-IT (Hall A & B) and No. 827-IT (Hall C & D) are part of that property. Respondent No. 1 submitted an application dated August 29, 1984 to the Commissioner of Police Delhi. He prayed for taking suitable steps to safeguard his life and the lives of his family members and to seal the property known as Chhunna Mal Building, This application was forwarded to the S.H.O., Police Station, Lahori Gate and proceedings under Section 107 Cr. P.C. were started against the three petitioners. A copy of the plaint as filed on the record of the SDM in the proceedings under Section 145 Cr. P.C. also shows that respondent No. 1 and three others have filed a suit against the present petitioners and some others for a decree of possession of the hasement of the premises bearing municipal No. 838-843, Chandni Chowk, Delhi, which is admittedly a part of the Chhunna Mal, Building and for a permanent injunction against the present petitioners restraining them from raising any illegal construction in the nature of shops in the premises. Respondent No. 1 submitted an application to the police. Some investigation, was conducted thereon by S.I. Ram Saran of P.S. Lahori Gate. He then got recorded the DD Entry No. 3A dated October 29, 1984. S.I. Ram Saran in the report has stated that an application has been moved by Shri Rajinder Mohan, respondent No. 1. During the investigation Rajinder Mohan told him that he has got 33 per cent share in the Chhunna Mal Building. Some of its co-shares have sold their shares in the said building in favour of Pal Singh etc., the present petitioners. They (petitioners) had taken unauthorised possession of a portion of that property. He filed a suit in the Delhi High Court and got injunction against them from the Delhi High Court. It was further stated in the report that Rajinder Mohan had stated that the three petitioners quarreled with him and threatened to forcibly take possession of his portion of the property and they have further threatened to kill him. On the contrary Pal Singh and others, petitioners, state that they have purchased portion Nos. 826/IT (Hall A & B) and No. 827-IT (Halls C & D) of Chhunna Mal Building Chandni Chowk, Delhi from all the shareholders including respondent No. 1 and that the entire possession of the property was with them. In this way the two factions fight quite often, because of which it was found that there was apprehension of breach of peace and that he (S.T. Ram Saran) had, therefore, submitted a kalandra under Sections 107/150 Cr. P.C. to the court of the SDM, Kotwali, which was pending. He further stated in the report that as there was a dispute regarding the property and the apprehension of breach of peace and danger to life was there, it was submitted that portions of house No. 826/TI (Hall A & B) and No. 827/TI (Hall C D) of Chhunna Mal Building may be sealed and for that purpose a kalandra under Section 145 Cr. P.C. was being sent. S.T. Ram Saran then submitted a kalandra under Section 145 Cr. P.C. on the same day which was forwarded by the ACP to the SDM, PS Kotwali. The SDM summoned both the parties to the dispute. He made the spot inspection and heard arguments of the parties counsel. The SDM thereafter passed the impugned preliminary order under Section 145(1) Cr. P.C. on January 14, 1985. Tn this order the SDM has dated that whereas on the basis of the police kalandra dated October, 29, 1984 it was represented to him that there was a dispute of possession likely to cause breach of peace between the complainant first party, Shri Rajinder Mohan and the second party, Shri Pal Singh and others, regarding the possession of property No. 826-TI (Hall A and B) and 827-TI (Hall C and D) of Chhunna Mal Building, Chandni Chowk, Delhi; and whereas he after going through the kalandra and personally hearing counsel for both the parties and after spot inspection, was convinced that the said dispute of possession likely to cause breach of peace did exist between the above-mentioned parties, it was necessary to decide the factum of actual possession of the disputed premises. The parties were called upon to appear before him on January 21, 1985 in person or through their counsel and to produce their written statements and documents with regard to the actual possession of the disputed premises.

(2.) Shri S. N. Marwaha, learned counsel for the petitioners, has challenged the proceedings as taken by the SDM and the preliminary order passed under Section 145(1) on the grounds; (i) that the petitioners were in actual possession of the property in dispute and as such there was no dispute regarding the possession of the property; (ii) there was no material before the SDM from which he could form an opinion that there was a breach of peace regarding the possession of the property; (iii) that in the preliminary order the SDM did not state any ground for his alleged satisfaction that a dispute likely to cause breach of peace existed concerned the possession of the property in question and that the preliminary order was passed by him without the application of mind and (iv) there was a civil suit pending between the parties in which the question of the possession of the property in question was involved and for that reason proceedings under Section 145 Cr. P.C. could not be initiated. It was contended that the proceedings as also the preliminary order was thus bad in law and should be quashed. I may say at the very outset that there is no merit in this contention. As regards the first submission Mr. Marwaha wanted to refer to come material which was not there before the learned SDM and from that he wanted to show that the petitioners were admittedly in possession of the property in question. Firstly it is a settled law that the question as to whether the proceedings as taken by the SDM and the preliminary order passed by him are assailable his to be decided having regard to the material that was there before the SDM and neither party can be allowed to produce additional material before this Court for the decision of the present petition for showing that the impugned order was bad. There was obviously no material before the learned SDM from which it could be said that the petitioners were in possession of the property in dispute. Mr. Marwaha wanted to refer to an agreement to sell dated, September 1, 1978 alleged to have been entered into between the parties wherein the petitioners are alleged to have agreed to sell the property in dispute to the petitioners and another and kacha copy of this was placed on the record of this petition. Mr. Mathur, learned counsel for respondent No. 1 submitted that the agreement was a forged document. I entirely agree with Mr. Mathur that the petitioners were not entitled to refer to any such material, particularly so when there is serious disputes regarding the authenticity of the said document. So far as the civil suit as pending between the parties is concerned, a perusal of the copy of the plaint as filed on the record of the SDM shows that the property in dispute was not the subject-matter of that suit. There is thus no merit in this contention of Mr. Marwaha.

(3.) As regards the second contention, the SDM in his impugned order stated that he has gone through the kalandra as submitted by the police and had heard the parties counsel and inspected the spot and that on the basis of this material he was satisfied that there was an apprehension of breach of peace regarding the dispute of possession of the parties over the property in dispute. As per 5. 145(1) an Executive Magistrate may be satisfied from a report of a police officer or from any other information about the likelihood of a breach of peace concerning the question of possession of any land or property. Thus the kalandra submitted by the police alone may be sufficient material on the basis of which a Magistrate can in law be satisfied so as to pass a preliminary order under S. 145(1). The Supreme Court in the case R. H. Bhutani v. Miss Mani J. Desai and others, held as below :- The satisfaction under sub-s. (1) of S-145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his a satisfaction both from the police report or from other informationT which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, t would not go into the question of sufficiency of material which has satisfied the Magistrate. In view of this clear dictum of the Supreme Court there is no merit in the submission of Mr. Marwaha that there was no material before the SDM or that the material as relied on by the SDM for passing the preliminary order was not proper material.