JALALUDEEN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This miscellaneous petition is directed against the order dated 23-9-1994, passed by the Sessions Judge, Merta, by which the learned Sessions Judge allowed the revision petition filed by Abdul Rasheed and others and set aside the order dated 2-5-1990, passed by the Executive Magistrate, Makrana, by which the learned Executive Magistrate attached the property and appointed the Station House Officer, Police Station, Makrana, as the Receiver.

(2.) Station House Officer, Police Station, Makrana, on 30-3-1990, filed a complaint under Section 145, Cr. P.C. in the Court of the Executive Magistrate, Makrana, on the allegations that with respect to a plot measuring 59' x 50' situated on the Northern side of Mangalawa Road, Makrana, there is a likelihood of breach of peace between Party No. 1 Jalaludden and Party No. 2 Abdul Rashid and others and with respect to which both the parties lodged First Information Reports at the Police Station. The notices were issued to both the parties and the time was given to them for filing their reply. On 26-4-1990, the case was adjourned for filing reply and on an application for attachment of the property. Though the case was fixed on 10-5-1990 but on 2-5-1990, the Station House Officer filed an application for attachment of the property as, according to him, there was an imminent danger of breach of peace. The learned Magistrate, on 2-5-1990, without giving any opportunity of hearing to Party No. 2 Abdul Rashid and others, took-up the matter on 2-5-1990 and ordered for the attachment of the property and appointed the Station House Officer, Police Station, Makrana, as the Receiver to take possession over land in question. The possession over the land in question was taken by the S.H.O. and the property is still in his possession. Dissatisfied with the order dated 2-5-1990, party No. 2 Abdul Rashid and others filed a revision petition before the learned Sessions Judge, Merta, which was allowed by him. While setting-aside the order passed by the learned Executive Magistrate, Makrana, the Sessions Judge was of the opinion that nothing new happened on or about 2-5-90 which persuaded the learned Executive Magistrate to pass an order for attaching the property and appointing the Receiver. The learned Sessions Judge, therefore, set aside the order passed by the learned Executive Magistrate and released the property from attachment. It is against this order that petitioner Jalaludden has preferred this miscellaneous petition.

(3.) The order dated 2-5-1990, attaching the property and appointing the Receiver was passed by the learned Executive Magistrate proponing the date from 10-5-1990 to 2-5-1990 and without giving any opportunity of hearing to the Party No. 2 Abdul Rashid and others and, therefore, the learned Sessions Judge was justified in setting-aside the order passed by the learned Executive Magistrate but whether any circumstances existed for attaching the property and appointing the Receiver, that has not been properly considered by the learned Sessions Judge. The order, passed by the learned Sessions Judge setting-aside the order passed by the learned Executive Magistrate is maintained but the parties are directed to appear before the learned Executive Magistrate on 15-12-1994 and the learned Executive Magistrate is directed to pass an appropriate order regarding attachment of the property and appointment of the Receiver after giving an opportunity of hearing to both the parties. So far as the observations made by the learned Sessions Judge in the order passed by him that there is no imminent danger to the peace, is concerned, that observation will not be operative and will not come in the way of the learned Executive Magistrate to decide the question of the necessity of attachment of the property and appointment of the Receiver if the circumstances warrant so. The learned Executive Magistrate is directed to decide the question of attachment of the property and appointment of a Receiver in accordance with law after hearing both the parties. Till the application for attachment of the property and appointment of the Receiver is decided, the possession over the land in question shall remain with the Station House Officer, Police Station, Makrana.