BHARAT CHANDRA SAHU Vs. ABDUL SATAR AND ORS.

JUDGEMENT

(1.) THIS is an application for quashing of the order dated 19 -2 -1983 passed by the learned Executive Magistrate. Jajpur converting a proceeding under Section 144 of the Code of Criminal Procedure to one under Section 145 thereof and for attachment of the property and of order dated 7 -3.1983 appointing the Revenue Inspector, Tentulidiha as receiver.

(2.) THE disputed property is stated to be 12 decimals out of 24 decimals in mouza Khosalpur. Opposite party No. 1, Abdul Satar, is the admitted owner. An application was filed on 31 -1 -1983 by the Petitioner before the learned Magistrate alleging that he was a lessee under opposite party No. 1 of two rooms and by expending a sum of Rs. 5,000/ - was running a shop there, on 5 -12 -1981 opposite party No. 1 agreed to sell the property to him and received consideration of Rs. 5,000/ -. The sale deed was to be executed in due course. As opposite party No. 1 spitefully deferred to execute the sale deed the Petitioner initiated Complaint Case No. 551/82 in the Court of the S.D.J.M. Jajpur. On 30th January, 1983, opposite party No. 1 with the aid and assistance of his supporters held a meeting in front of the shop and gave threats to forcibly eject him and destroy his articles. There on the Petitioner filed an application before the Magistrate for initiation of an appropriate proceeding. The application was sent by the Magistrate to the Officer -in -charge, Mangalpur Police Station for enquiry an report. The Police submitted a report on 11 -2 -1983 to the effect that the house belonged to opposite party No. 1 but it was in occupation of the first party -Petitioner. The members of second party were large in number. As there was apprehension of breach of peace a t the instance of the opposite party initiation of a proceeding Under Section 144 of the Code of Criminal Procedure and an order of restraint against the members of the second party were suggested. The learned, Magistrate started a proceeding under Section 144 and restrained the members of the second party from going upon the property in dispute.

(3.) IT will be clear from the contents of the petition filed by opposite party no that he did not raise any dispute over possession of any immovable property. He admitted that the Petitioner was a tenant but rent was not being paid and the Petitioner was openly declaring that he would not vacate. The real grievance of opposite party No. 1 in his petition was the threatening attitude of the Petitioner and the apprehension of danger to his life. The said petition was sent by the Magistrate for necessary action by the Police. On 19 -2 -1983 the Police submitted a report that over the disputed land stood a small thatched house in the west and the Petitioner was carrying on his grocery business as a tenant under opposite party No. 1. It was also reported that the order passed under Section 144 of the Code of Criminal Procedure has been promulgated in respect of the entire land comprising of 12 decimals and a part of it was cultivable land in regard to which there was no dispute. There was another room in the house which was being used as post office. There was a verandah which stood on Government land. In view of the apprehension of breach of the peace the police suggested that the proceeding under Section 144 should be converted to one under Section 145. Thereupon by order dated 19 -2 -1983 the learned Magistrate, converted the proceeding to one under Section 145 of the Code of Criminal Procedure and directed attachment of the disputed property. The Revenue Inspector, Tentulidhiha was appointed as receiver. In pursuance of the order, attachment was effected and articles were taken to custody upon a zimanama.