ZILA PARISHAD Vs. RAMJI LAL GAUTAM AND ORS.

JUDGEMENT

(1.) This is a criminal reference by the learned Addl. Distt. Magistrate (J) Mathura and it arises under the following circumstances.

(2.) The Zila Parishad Mathura filed an application against Sarnam Singh and ten others in the court of the SDM Sadabad, praying that, on the facts and for the reasons mentioned in that application, action Under Sec. 145 or Sec. 107/117 Code of Criminal Procedure might be taken against them. The learned SDM called for a police report and after satisfying him -elf that there was an apprehension of breach of peace between the parties regarding possession of the some plots of land mentioned in that application, passed a preliminary order Under Sec. 145 Code of Criminal Procedure and pending its decision directed the attachment of the subject matter of dispute. Notice of this preliminary order was served on both the parties and they were ordered to file their written statements etc. as required under that section. During the pendency of those proceedings one Ramji Lal Gautam, alleging himself to be the Manager of Friend's Society, moved an application before the learned SDM Sadabad stating that as he was a 'person interested' in the subject of dispute within the meaning of Sec. 145(5) Code of Criminal Procedure, he might also be made a party to those proceedings. The learned SDM after hearing the learned Counsel for the parties allowed the application by his order dated 10 -3 -1965. The Zila Parishad Mathura preferred an application in revision against that order in the court of the Addl. Distt. Magistrate (J) Mathura and the latter opining that Ramji Lal Gautam was not a person interested within the meaning of Sec. 145 (5) Code of Criminal Procedure, made the aforesaid reference with the recommendation that the order of the learned SDM dated 10 -3 -1965 be quashed and he be directed to proceed with, the hearing of the case in accordance with law.

(3.) From the narrative given above, it is clear that the sole point falling for consideration in this reference is whether Ramji Lal Gautam can be held to be an 'person interested' within the meaning; of Sec. 145(5) of the Code of Criminal Procedure and if so, whether his interest is confined only to showing that no such dispute as alleged by the Zila Parishad Mathura exists, or he can also agitate the question of his alleged possession over the subject of dispute. The record of the ca se shows that the application of the Zila Parishad Mathura Under Sec. 145/107/117 Code of Criminal Procedure was filed in the court of SDM Sadabad on 5 -2 -1965, along; with a police report supporting 'the Applicants' allegations about the apprehension of breach of peace. The same day the learned SDM ordered that application to be listed on the following day and on the latter day he pleased the preliminary order, as also the order directing the attachment of the disputed properly, mentioned above. It does not appear how Ramji Lal Gautam got information 'about these proceedings, but the record shows that on 23 -2 -1965, he moved an application before the learned SDM stating that he was the Manager of the Friends' Society, which had full right, title, interest in and was in exclusive possession of, the plots mentioned in the preliminary order, he was, therefore, a 'person interested' in the instant proceedings and was entitled to be impleaded as' a party thereto. As in this application Ramji Lal Gautam, besides asserting the right, title and interest of the Friends Society in the plots mentioned in the preliminary order, further claimed that the latter was also in exclusive possession of the same, he is clearly a 'person interested' in the subject of dispute and has the right to have his claim on the basis of actual possession considered in these proceedings. To hold otherwise might in cases, like the present case, lead to the incongruous position that the person actually in possession of the subject of dispute might be kept out of asserting his right in a Sec. 145 Code of Criminal Procedure proceeding by the simple 'device of not making him a party to them.' In this connection the provisions of Sub -section (3) of Sec. 145 Code of Criminal Procedure, which require a copy of the preliminary order to be affixed to some conspicuous place at or near the subject of dispute are not without some importance. This requirement, be it noted, is in addition to the requirement of personal service of the a id order on the disputants and appears clearly to have been provided, so that even persons who are not parties to those proceedings but have an interest on the basis of their actual possession of the disputed property, may payable to come forward and take part is those proceedings under pain of being bound by the decision therein. Thus the view taken by the learned Addl. Distt. Magistrate (J) is incorrect and can not be sustained.