JAG PRASAD Vs. DEPUTY DISTRICT MAGISTRATE MILKIPUR FAIZABAD

JUDGEMENT

(1.) HEARD Shri M.A.Siddiqui, learned counsel for petitioner, learned Chief Standing Counsel for opposite parties 1 to 3, Shri Balram Yadav, learned counsel appearing for opposite party no.4 and perused the pleadings of writ petition.

(2.) LEARNED counsel for petitioner submitted that towards the implementation of order passed by Deputy Director of Consolidation in a proceeding under Section 48 of U.P. Consolidation of Holdings Act (For short 'The Consolidation Act'), the Sub Divisional Magistrate concerned has passed the impugned order which is not sustainable as it is not supported by any authority of law, in particular, under Sections 145,146,147 and 148 of the Code of Criminal Procedure.

(3.) IN support of his submission, learned counsel for private respondents referred to a judgment of learned Single Judge of this Court reported in 1995 (13) LCD 519 (Harpal vs. State of U.P. & Others). Learned counsel also referred to a judgment of Calcutta High Court reported in 2001(Suppl.) R.D. 68 (Nanturam Naskar & Others vs. Ajit Kumar Mondal). In Harpal's case (supra), learned Single Judge deciding the matter has held that in the parallel proceedings, civil as well as criminal, if the Civil Court has not passed any order on the question of possession, in such a case, it will be open for the Executive Magistrate to proceed under Section 145(1) Cr.P.C. and pass order of attachment under Section 146(1) Cr.P.C., although this order will be subject to the order passed by the Civil Court at later stage deciding the question of possession. Similarly in the case of Nanturam Naskar (supra), it has been held that it is within the competence of Executive Magistrate to exercise powers under Sections 144 and 145 Cr.P.C. and to appoint a Receiver for taking into custody, and to dispose the standing crop. Further, in exercising such powers, the prime consideration before the Magistrate would be to assess as to whether there is a likelihood of breach of peace, and further a direction of maintenance of status quo passed by Civil Court would not be a bar to orders passed by the Executive Magistrate.