SHAMLAL Vs. STATE

JUDGEMENT

(1.) Petitioner filed a report with the Police on 26.9.77, that he had let out disputed property to one Radha Rani who had died issueless and her relations were trying to illegally give the premises to Respondent 2. On 3.10.77, a similar report was made by one C.L. Khanna claiming that he was adopted son of husband of Radha Rani and was entitled to occupy premises and to goods bying in the same and that there was a danger to breach of peace. The reports were submitted to the S D.M. On the basis of first report he made an order on 1.10.77, summoning the parties for filing W/Ss on 6.10.77. On the basis of 2nd report he madeanorderon5.10.77, attaching the propenty u/s 146 (1) for the reason that there was apprehension of breach of peace. On 1. 10.77, Respondent 2 made an application to S.D.M. saying that possession of dispute property was with them and they be made a party in the case, Relying on Hakim Singh Vs. Girdhar Singh 1975. Rajdhani L.R. 507, this application wasrejectedon26.10.77. (After giving above facts, judgment para 7 onwards is) 157 1979 Rajdhani Law Reporter 156 158

(2.) Feeling aggrieved by the aforesaid orders of the S D.M M/s. Chiranji Lal Chander Bhan filed a revision petition in the court of the Sessions Judge, Delhi. The revision petition was heard by Shri T,S Oberai, Additional Sessions Judge, Delhi, who passed the impugned order setting aside the orders dated 1,10.77 and 5.10.77 passed by the learned S D.M. as also his subsequent order dated 26.10.77 passed on the application of Chiranji Lal Chander Bhan directing the "possession of the disputed premises (in question) shall be restored to the party with whom the possession vested at the time of attachment."

(3.) Saction 145 (1) of the Code envisages that whenever an Executive Magistrate is satisfied from a report of a police officer or upon 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, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. A bare perusal of this Section reveals that an order in writing is to be passed by an Executive Magistrate on being satisfied from a report of a police officer or upon other information and the satisfaction has to be that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local jurisdiction of the Executive Magistrate and upon such satisfaction alone the Executive Magistrate is competent to make an order u/s 145 (1). Not only this the Executive Magistrate has to state the grounds of his being satisfied It is then and then alone that he can pass an order as envisaged by Section 145 (1) of the Code requiring the parties concerned to attend his court in person or by pleader, on a specified date and time, and put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute. I have perused the order dated 1.10,77 passed by the learned S.D.M. U/S 145 (1) of the Code. Except for making a bare mention of the fact that it appeared to him from the report dated 27.9.77 sent by the S.H.O. Police Station Lahori Gate, that a dispute likely to cause breach of peace existed between the parties, mentioned in the order, he had not stated in the order the grounds on which he felt satisfied for making the impugned order. The order accordingly is not in consonance with the provisions of law. Section 145 (1) does not authorise an Executive Magistrate to initate proceedings merely on the strength of a complaint or police report or other information stating that there is the like hood of breach of peace in respect of a dispute regarding the possession of an immovable property. It is only on being satisfied that a real dispute exists concerning the possession of an immoveable property and that such dispute is likely to cause a breach of the peace that the Executive Magistrate is competent to pass an order U/S 145 (1) stating his reasons in writing for his satisfaction. This having not been done the order in question was, therefore, rightly set aside by the Additional Sessions Judge.