ALI MOHD TANTRY Vs. STATE

JUDGEMENT

(1.) THROUGH the medium of petition in hand the petitioners through their counsel have sought quashing of proceedings initiated by Tehsildar -Executive Magistrate, Budgam under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) in respect of land measuring 2 kanals and 19 marlas covered by survey No. 2759/1402 located at village Rawalpora. It is maintained in the petition that in terms of sale deed executed on 20.5.2001 petitioners 2 to 4 have purchased the land measuring 2 kanals and 19 marlas comprising of survey No. 2759/1402 located at Rawalpora from one Habib Tantry against a consideration amount of Rs. 1,50,000/ -. The possession of the said land was taken by the petitioners on the said date and the sale deed in this behalf was registered by Sub -Registrar on 28 -05 -2001. That the mutation of the said land stands attested in favour of the said petitioners by the revenue authorities on 30 -05 -1982. That the respondents 2 to 7 have no right or interest in the said land but in order to deprive the petitioners 1, 3 and 4 of the ownership and possession of this land have involved them in unnecessary litigation by instituting suits before the Sub -Judge, Budgam. During the pendency of the suits the respondents have approached the police concerned, who have submitted a report under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) for initiation of proceedings under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) in the matter. That Tehsildar Executive Magistrate had no jurisdiction to entertain the said complaint because the said land is in possession of the petitioners when on the otherhand the Tehsildar -Executive Magistrate has entertained the said report and .recorded orders in the said proceedings. That the petitioners are aggrieved of the proceedings initiated by Tehsildar -Executive Magistrate under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) in respect of said land which is in their ownership and peaceful possession. That in proceedings under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) the learned Executive Magistrate has not recorded any preliminary orders as contemplated under section 145(1) Code of Criminal Procedure, Svt. 1989 (1933 A.D.) That all the orders passed in the said proceedings are infirm and are liable to be set aside.

(2.) HEARD learned counsel for the petitioners and Mr. Qadiri, learned Sr. Addl. Advocate General.

(3.) RECORD is received. It appears that report for initiation of proceedings under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) came to be initiated by SHOP/S Saddar before the Executive Magistrate -Tehsildar, Budgam stating therein inter -aliathat Abdul Hamid Tantry, Firdous Ahmad and Bashir Ahmad Tantry Sons of Abdul Samad Tantry expressed their desire to sell land measuring 3 kanals comprising of survey No. 2759/1402 located at Rawalpora. Pursuant to that All Mohammad Tantry, Bashir Ahmad, Farooq Ahmad Tantry sons of Habibullah Tantry party No. 1 and Mohammad Ramzan, Abdul Ahad Tantry, and Fayaz Ahmad Sons of Abdul Hamid Tantry party No.2 became desirous to purchase it jointly. Later on, party No. 1 purchased this land and took possession which irritated the party No.2 as a result of which both the parties resorted into rioting and in violence several times, as a result of which cases and counter cases under FIRNos. 161, 162, 165, 166, 199 and 200 of 2001 in Police Station, Saddar came to be registered. On receipt of this information the learned Executive Magistrate -Tehsildar appears to have recorded statement of Head constable No. 584/S namely Bashir Ahmad of P/S Saddar and came to record an order dated 30 -07 -2001, which reads that the complaint under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) came to be presented by Head constable No. 584/S Bashir Ahmad of P/S Saddar, the same is entered into registered concerned. The statement of Head constable has been recorded which forms part of the file wherein he has stated that the parties have a dispute as a result of which they resorted to quarreling and six cases have been got registered by them against each other. Therefore, the parties to the complaint are hereby put to notice with direction to cause their appearance before the court on 2.8.2001 and file their objections failing which the subject matter of the dispute shall be attached under section 145 Code of Criminal Procedure, Svt. 1989 (1933 A.D.) Section 145(1) Code of Criminal Procedure, Svt. 1989 (1933 A.D.) Provides: 145. Procedure where dispute concerning land, etc. is likely to cause breach of peace (1) Whenever a (Chief Judicial Magistrate, or any other Judicial Magistrate of the first class) is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. Provided that the dispute likely to cause a breach of peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1976, the powers under this section shall be exercisable only by the District Magistrate or an Executive Magistrate of the First Class. 