LEKH RAJ Vs. HAFIZ RANGE OFFICER

JUDGEMENT

(1.) THIS revision petition is directed against two orders passed by Tehsildar Executive Magistrate, Doda, in an application u/s 145 Cr. Pr. Code. By his first order dated 31 -5 -1975 he has declined to grant the petitioners permission to amend their application by correcting the survey number of the land in dispute and by his second order dated 22 -8 -1975 he has dismissed the application itself for want of proof.

(2.) THE petitioners moved the aforesaid application in the court of the Magistrate as far back as on 23 -2 -1974 with the allegations that land measuring 40 kanals comprised in Khasra No. 172 min situate at village Paryote, Tehsil Doda was in their cultivating possession for a pretty long time on which the counter -petitioners were forcibly trying to Prow nursery, which had caused an apprehension of breach of peace on the spot. The Magistrate being prima facie satisfied about the existence of the dispute likely to cause breach of peace, passed an order on the same day in terms of Sub -sec. (1) of Sec. 145 Cr. Pr. Code and issued notices to the counter -petitioners to put in their claims in regard to the possession of the disputed land. The counter -petitioners filed their objections stating therein that they and not the petitioners were in possession of the disputed land. On 6 -6 -1974 an application was made by the petitioners that they be permitted to amend their application by stating the correct, survey number of the disputed land in it. This prayer was disallowed by the Magistrate on the ground that once the preliminary order was issued, the Magistrate was powerless to amend the same or even the application as according to him, it would necessarily mean substituting one property in dispute for another. He thereafter, as already stated, dismissed the application for want of proof.

(3.) NONE of the orders passed by the Magistrate in my opinion can be defended for the reasons that the first one is totally misconceived and the second absolutely reckless. There was no mis -understanding between the parties in so far as the identity of the land in dispute was concerned. Each of them knew its location as well as area. What the petitioner wanted to do was to correct its paper description because some mistake had crept in mentioning its survey number. It could have never resulted in shifting the venue of the dispute or substituting one piece of land for the other. Only a clerical error had to be corrected, so long as breach of peace existed on the s -it jurisdiction of the Magistrate to proceed u/s 145 remained alive and he was competent to pass all such orders which were incidental to the final order. His main object was to prevent breach of peace by determining the question of actual possession of the disputed land. Not to speak of removing mere clerical errors in the description of the land, he could have even included in the ambit of his enquiry any other land in regard to which a dispute might have arisen between the parties subsequent to the passing of the preliminary order. It is unthinkable that he had no power to correct a mere clerical error in the preliminary order when such an error could be corrected u/s 369 Cr. Pr. Code even in a judgment or a final order. I am supported in taking this view by a Bench decision of Nagpur High Court in State of Madhya Pradesh Vs. Prem Lal AIR 1957 Nagpur 27 wherein the court observed as under : - "It has been held in a number of cases that where once a valid preliminary order has been passed subsequent errors or omissions relating to procedure or to specification of property in the preliminary order do not vitiate the subsequent proceedings. The only two essential conditions, which confer jurisdiction upon a Magistrate under S. 145 are firstly that there should be a dispute over land or water and secondly that such a dispute should be likely to cause breach of the peace. Both these conditions were fulfilled in the instant case. Even if additional land was specified later on, it was, in our opinion, an error which does affect the validity of the proceedings." And again : "Where the party to a proceeding under S. 145 of the Code of Criminal Procedure known very well the subject matter of the dispute, an omission to clearly specify it in the preliminary order has been held to be a minor defect of proceeding. See Rattan Singh V. Raghubir Singh, AIR 1952 Madh -B 165(F). It would be a different matter if the property in dispute were not at all specified or specified so as to mislead the party as in the cases in. In re -petition of T. A. Martin, ILR 27 All 296(G) and Siv Narayan Vs. Satish Chandra, 24 Cal. WN 621 : (AIR 1920 Cal. 344) (H) both of which were distinguished in Rattan Singhs case (F) (Cit. Sup.)." It is therefore, obvious that the Magistrate refused to exercise jurisdiction vested in him.