NARANDAS TOLARAM Vs. BHAGSINGH KIRPALSINGH KHALSA

JUDGEMENT

(1.) THIS is a revision petition filed by the original opponents Nos. 1 to 4 under Section 485 of the Criminal P. C. against the order passed by the learned Sub-Divisional Magistrate, Mehsana, in exercise of his powers under Section 145 (4), Proviso 3, in a proceeding taken out by the present opponent No. 1 against the present petitioners, under Section 145 of the Criminal P. C.

(2.) THE preliminary facts giving rise to this revision petition are briefly stated as under: The opponent No. 1, Sardar Bhagsingh Kirpal singh Khalsa is a partner of M/s. Raj Construction Company, Ahmedabad. The present petitioners are the office-bearers and leading members of the Mehsana Sindhi Co-operative Housing Society, Mehsana. As stated at the Bar by the learned Advocate Shri Sheth, the petitioners Nos. 1 and 2 are the Chairman and Secretary of the said society respectively and the petitioners Nos. 3 and 4 are the members of the Managing Society of the said Society M/s. Raj Construction Co. are doing business of building contract. They had entered into a contract with the aforesaid Society in November 1964 through the Society a Architect. M/s. Asarpota and Asarpota for building bungalows on Society's plot, bearing Revenue Survey No. 37 (P), situated near the Municipal Garden of Mehsana. The version of the Opponent No. 1 was that the dispute arose between them on account of Society's not making payment as per the agreement and as such the opponent No. 1 terminated the contract in May 1966. According to the opponent No. 1, as per the terms of the said building contract, the opponent No. 1 was to be in possession of the property in question and was to remain in possession of it till the dues of the opponent No. 1, i. e. the aforesaid concern were paid by the said Society, It was the vision of the petitioners on behalf of the Society that the Society was the owner of the property in dispute and was in possession of it. The opponent No. 1 was not to be in possession of it and was never in possession of it. It was the say of the opponent No. 1 that the present petitioners tried to take possession of the site by force in August 1966 but since he was in rightful possession of the Bite by the order of the Architect and he had a right to retain possession of the site along with half finished bungalows till payment of his dues, amounting to more than a lac of rupees, he instituted two civil proceedings, one in the City Civil Court Ahmedabad in August, 1966 and the other in the Court of the District Registrar, Cooperative Societies, Mehsana in October, 1966 and obtained in Junction orders from both the Courts or the authorities concerned, restraining the present petitioners from interfering with possession of his. The injunction order of the City Civil Court was obtained on 25. 8. 1966 and continued till 8. 11. 1966. Meanwhile, an injunction order was obtained from the Court of the Registrar's Nominee on 25. 10. 1966 and that injunction order was in force till the present proceedings but the petitioners in violation of the aforesaid injunction order, passed by the Registrar's Nominee, were entering into the site in question, daily from 17. 11. 1966 and were sending the labourers, masons and carpenters etc. , for construction work. When they are checked or prevented by the watchmen of the opponent No. 1, they threatened and abused them and have tried to over them and in the situation as such, that it is likely to create a breach of peace. It is the petitioners, their employees and their labourers who have started construction of the bungalows and have caused considerable damage to the constructions, materials, etc. They are giving threats and asking the watchmen of the opponent No. 1 to leave the site. They are trying to dispossess him by use of violence. If effective opposition is made on his behalf, there will be a serious conflict which will result in a said to the property and life. However, applications have been made to the police in that regard. On these allegations and substantial allegations that it is very likely that breach of peace will be committed, he took the proceedings under Section 145. The learned Magistrate passed a preliminary order and contemplated under Section 145 of the Civil P. C.

(3.) THE present petitioners filed their reply after notice was issued and they contended that there was no likelihood of a breach of peace. The dispute between the parties was of a civil nature. The Society was the owner of the property in question and was in its possession. The opponent No. 1 was not in possession of it. The opponent No. 1 had failed to carry out the construction work strictly as per specifications and when he was called upon to rectify the mistakes and errors, made by him, in execution of work, ha abandoned the work under intimation, dated 26th March, 1966 and by a letter dated 27th May, 1966, terminated the contract. He was requested to resume that work and he declined it; only to harass the Society, he took false and frivolous proceedings by filing the miscellaneous application in the City Civil Court, Ahmedabad and obtained ad interim injunction, restraining the present petitioners from taking possession etc, and also got the Commissioner appointed by the Court to make inventory regarding the actual work done. He also filed a petition before the Registrar's Nominee foe a claim of Rs. 1,04,873. 57 nps, against the Society and obtained ex parte injunction, restraining the Society from taking possession of the site land. There was no question of taking possession of the site land. The Society is in fact in its possession from the time the possession is banded over to it by the Government on 29. 4. 1960 vide Commissioner A. D. 's Order, dated 22nd January, 1960. The opponent No. 1 is harassing members of the Society and is taking proceedings one after the other. He has against the members of the Society, filed a Criminal complaint of trespass, before the Mehsana Taluka Police Sub-Inspector on 4. 12. 1966. The opponent No. 1 has no prima facie case to show that he was ever in exclusive possession of the land of the Society. The society has never parted with possession in favour of the Contractors. The opponent No. 1 intends to ruin the members of the Society by trying to prevent them from completing the remaining work of constructing the bungalows. The Society being the owner of the-land and being in possession, is entitled as of* right and legally to carry out the work without being obstructed by the opponent No. 1 or anyone.