BANAMBAR DAS Vs. PITAMBAR DAS

JUDGEMENT

(1.) The second party members in Criminal Misc. Case No. 155 of 2008 of the court of the Executive Magistrate, Kendrapara assails the order dated 16.12.2008, wherein the learned Executive Magistrate attached the lands in question and appointed Revenue Inspector, Baro Circle as the receiver.

(2.) The opposite parties in this Revision filed an application under Section 145 of the Code of Criminal Procedure, 1973, hereinafter referred to as "the Code" for brevity, before the learned Executive Magistrate, Kendrapara arraying the present petitioner and others as second party members. They further prayed to restrain the second party members from interfering with their peaceful possession of the case lands. On perusal of the petition filed by the present opposite party No. 1. the learned Magistrate passed an order directing the local police to submit the report and both the parties were restrained to come up on the case land. The case was posted to 18.12.2008 for further hearing. Pursuant to the notice issued by the Court on 8.12.2008, the present petitioner entered appearance and filed his counter. While the matter stood thus, on 10.12.2008, the first party filed a petition with prayer to appoint Revenue Inspector, Baro Circle as receiver in respect of the case land with a direction to cut and harvest the paddy crops standing over the case land and to submit a report before the trial Court. He did not serve a copy of the petition dated 10.12.2008 to the present petitioner. Accordingly, without giving any reasonable opportunity to be heard, the orders were passed on 16.11.2008 and Revenue Inspector, Baro Circle was appointed as receiver in respect of the case land. The petitioner thus assails the order passed on 16.12.2008, wherein the learned Executive Magistrate has held that there is every possibility of serious law and order problem, which may result in murder and blood-shed etc. Hence, he ordered the Revenue Inspector, Baro Circle under the Kendrapara Tahasil to act as receiver with respect to the case lands.

(3.) It is not disputed that on 27.11.2008, the learned Executive Magistrate on receipt of the petition filed by the present opposite party No. 2 called for a report from the Inspector In Charge, Kendrapara Police Station regarding law and order problem over the suit property. Both the parties were restrained by the Court till filing of written statement by the opposite party. In course of hearing of the revision application, learned Counsel for the petitioner submitted that as the order passed by the learned Magistrate on 16.12.2008 appointing Revenue Inspector, Baro Circle under the Kendrapara Tahasil was made without initiating a proceeding under Section 145(1) of the Code, the order passed by the learned Magistrate is wrong. Learned Counsel for the opposite parties however submitted that the revision application against the order of this nature is not maintainable and the Magistrate may pass the order of attachment under Section 145(8) of the Code.