MOHD SULTAN MIR Vs. GH NABI MIR

JUDGEMENT

(1.) THIS petition u/s 561 -A Cr.P.C has been filed to quash proceedings u/s 145 Cr.P.C pending on the files of Ld. Executive Magistrate 1st. Class Bandipora as also for quashment of order dated 18.06.05 passed by Ld. Executive Magistrate Bandipora and order dated 16th Oct.2007 passed by Ld. Additional District & Sessions Judge Baramulla in revision petition captioned Mohd Sultan Mir v. Gh. Nabi Mir.

(2.) FACTS briefly stated: The respondent Gh. Nabi Mir filed an application u/s 145 Cr.P.C before the court of Ld. Executive Magistrate 1st. Class (Tehsildar) Bandipra. The application was filed against the present petitioners. In the said application respondent pleaded that he has 4 kanals and 12 marlas of land in his ownership covered by survey No. 1611 situated at Bandipora. The application filed by respondent further reveals that adjoining the said land is land measuring 4 kanals and 02 marlas covered by survey No. 1610 min which is in the ownership of present petitioners. It is further pleaded in the application that present petitioners by employing muscle power have forcibly taken possession of 1 kanal 2 marlas of land out of the land of respondent and have annexed the same with survey No. 1610 min. The further case set up in the application is that under the supervision of Naib Tehsildar Bandipora the land was demarcated on spot and the demarcation proceedings resulted in showing that land measuring 1 kanals 2 marlas which are in the possession of present petitioners, in fact belongs to respondents. It is further pleaded by respondent that the present petitioners were requested number of times not to cause any impediment to the petitioners right to utilize 1 kanal 2 marlas of land but the present petitioners are not permitting the respondent to occupy land which has given rise to breach of peace on spot. This application has been drafted on 18th May 2005 and record reveals that same has been presented before Ld. Executive Magistrate 1st. class Bandipora on 16th June 2005. Record of the revisional court further reveals that alongside the application u/s 145 Cr.P.C another application u/s 145(4) Cr.P.C was also filed on almost same grounds which were taken in the first application and request was made for attachment of the land in question as dispute over same has been raised which may give rise to likely breach of peace on spot. On the reverse of the said application is recorded report of some Revenue Officer . The said report reveals that as per record, land measuring 4 kanals 8 marlas under survey No. 1610 min are in ownership of present petitioners and land measuring 4 kanals 12 marlas under survey No. 1611 min are recorded in the name of father of respondent. The report further reveals that in respect of both survey numbers dispute has arisen between the parties for about last two years. The report further reveals that the reporting authority alongwith the Girdawar of the area conducted demarcation of the land on 6th Nov. 2004 and as per demarcation it was found that there is deficiency of 1 kanal and 2 marlas of land of the respondent which land was found to be in possession of the present petitioners. The report further reveals that respondent had stated before the revenue authorities that present petitioners are not handing over the possession to the respondent of 1 kanal and 2 marlas of land. The revenue officer thereof while referring to stance of respondent has stated that because of this there is apprehension of breach of peace and had requested for initiation of action u/s 145 Cr.P.C and for attachment of the land. The record of the revisional court further reveals that on 18.06.05 an order was passed by ld. Executive Magistrate 1st. Class Bandipora. English translation of the same is as under: - "On 16.06.05 an application has been presented by the applicant. SHO Bandipora be informed to give his report about the application. Concerned patwaris report has been obtained which has been made part of the file. The perusal of the application reveals that land measuring 4 kanals 12 marlas under survey No. 1611 min is recorded in the name of applicant, out of the said land only 3 kanals and 10 marlas are under the possession of the applicant. Adjoining to the land of the applicant is land of Mohd. Sultan Mir S/o M. Ramzan Mir covered by survey No. 1610. On spot M. Sultan Mir s/o Ramzan Mir and ors have taken forcible possession of land measuring 1 kanal 2 marlas and are refusing to restore back possession to the applicant, and they are fighting on spot which has given rise to breach of peace and any serious offence may be committed. Copy of extract of Girdawari shows that land measuring 4 kanals 12 marlas under survey No 1611 min is recorded in the ownership column in the name of father of the applicant and land measuring 4 kanals 8 marlas under survey No. 1610 is recorded in the ownership column in the name of non -applicants. The patwaris report reveals that non -applicants M. Sultan Mir and ors are in possession of land measuring 5 kanals 10 marals which makes it clear that non -applicants have forcibly taken possession of land measuring 1 kanals 2 marlas of the applicant which has given rise to dispute between parties on spot. The police report P/S Bandipora also reveals that in respect of land in question serious offence may be committed by parties and which may result in commission of cognizable offence. The applicants witnesses also reveal that on spot there is apprehension of commission of offence and apprehension of breach of peace. The court is satisfied that the land in question can give rise to breach of peace as such land measuring 1 kanal 2 marlas under survey No. 1610 min situated at Village Bandipora is attached and SHO P/s Bandipora is ordered to proceed on spot and attach the land under survey No. 145 Cr.P.C and possession thereof be handed over to some other person. Superdar is directed to keep watch and ward of the land in question and the accounts be produced before the court. Further SHO P/S Bandipora is directed to submit report in respect of attachment within two days. Meanwhile, other party will file objections. Put up on 27.06.2005. Order announced."

(3.) PETITIONERS challenged the proceedings by filing revision petition before Ld. Pr. District and Sessions Judge Baramulla who transferred the same on 25.11.05 to Ld. Additional District and Sessions Judge Baramulla for disposal under law.