IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CrMMO No. 80 of 2018 Decided on: September 24, 2018 . Smt. [ENTITY] Petitioner Versus [ENTITY] and others Respondents Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. [ENTITY], Senior Advocate with Mr.[ENTITY], Advocate. For the Respondents : Mr. [ENTITY], Advocate, for respondents No.1 and 2. Mr. [ENTITY] and Mr. [ENTITY], Addl. AG's with Mr. [ENTITY], DAG, for respondent No. 3. [ENTITY], Judge (Oral)
Instant petition under Section 482 [ACT] is directed against order dated 21.11.2017, passed by the learned Sessions Judge, [ENTITY], Himachal Pradesh in [CASE NUMBER], setting aside order dated 29.4.2017 passed by Sub Divisional Magistrate, [ENTITY], Himachal Pradesh in [CASE NUMBER], whereby complaint under [SECTION] [ACT] having been filed by the petitioner-
complainant (hereinafter, 'complainant') was allowed.
Whether reporters of the local papers may be allowed to see the judgment
2. For having a bird's eye view, briefly stated the facts of the case, as emerge from the record, are that .
pursuant to a complaint filed by the complainant, [ENTITY] daughter of Shri [ENTITY], police presented [ENTITY] under [SECTION] [ACT] before the learned Sub Divisional Magistrate, [ENTITY], District [ENTITY], Himachal Pradesh. Complainant in her complaint alleged that the respondents forcibly entered into [ENTITY] situated over Khasra No. 1929 in Phati Dhalpur, Kothi Maharaja, Tehsil and District, [ENTITY], Himachal Pradesh. Complainant further alleged that respondents No. 1 and 2 were foricibly dispossessing the complainant from her land. On 13.6.2015, at about 4.00 pm, when complainant went to her land situated at Beasa Mour, Akhara Bazaar, [ENTITY], then she found that one of the planks of the [ENTITY] was broken and some persons namely [ENTITY], [ENTITY] and [ENTITY] were laying the floor of the [ENTITY] and they had also removed the partition wall. As per complainant, when she inquired from [ENTITY], he told that his father, [ENTITY] had engaged the labour for executing the work. It is also alleged that they broke the locks of both the shutters and put new locks on them. It is further alleged by the complainant that on 14.6.2015, when complainant and Shri A.N. Vidyarthi, went to the spot, then work was going on and when they asked [ENTITY] and 2-3 labourers to stop the .
work, they entered into verbal duel with them. Police party went to the spot on the information received from A.N. Vidyarthi, at about 3 pm and thereafter entered Rapat No. 19 at about 8.30 pm, after recording statement of complainant-
[ENTITY].
3. On the basis of report, [ENTITY] was presented before Sub Divisional Magistrate, [ENTITY], on 20.6.2015, who, after going through the statement of the witnesses, recorded by the police, summoned the parties to the court in person or through their pleaders on 26.6.2015 and asked them to file their written statements regarding their respective claims. On 26.6.2015, respondents No. 1 and 2 came in person in the court and they were supplied with the copies of [ENTITY], with further direction to file their replies/written statements, if any. Record further reveals that respondents filed reply to the notice under [SECTION] [ACT], on 22.7.2015, whereafter on 4.8.2015, Sub Divisional Magistrate sent the file to the Tehsildar, [ENTITY] to obtain 5-point spot report on the prescribed format, regarding actual/physical possession over the disputed land/structure. On 26.8.2015 court below received spot report from the office of Tehsildar, [ENTITY], but since same was not found to be in accordance with law, matter was again sent to the Tehsildar [ENTITY], for proper spot .
inquiry on 5-points. Court also directed that the parties be associated during said inquiry. Court below, after having received spot report from Tehsildar, [ENTITY], fixed the matter for consideration on 8.12.2015, whereafter, matter came to be listed for recoding the statements of PW's.
4. Close scrutiny of record nowhere reveals that prayer, if any, was ever made by either of the parties to file objections, if any, to the spot report furnished by the Tehsildar, [ENTITY]. Subsequently, the Sub Divisional Magistrate, vide order dated 29.4.2017, held that claim of actual possession made by the complainant, [ENTITY], is true at this stage and accordingly she was declared to be owner-in-possession of the said [ENTITY] and held entitled to retain spot possession until ousted in due course of law.
5. Learned Sub Divisional Magistrate, also directed SHO, Police Station, [ENTITY], to assist in restoring possession to the complainant i.e. Smt. [ENTITY]. Being aggrieved and dissatisfied with the order passed by Sub Divisional Magistrate, [ENTITY], respondents No.1 and 2 filed Criminal Revision Petition in the court of learned Sessions Judge, [ENTITY], Himachal Pradesh, who vide order dated 21.11.2017, while allowing revision petition, set aside order dated .
29.4.2017, passed by trial court, as a consequence of which, [ENTITY] filed by the police on the complaint of complainant, [ENTITY], under [SECTION] [ACT], came to be cancelled/dismissed.
6. In the aforesaid background, complainant has approached this Court, in the instant proceedings, praying therein for restoration of order dated 29.4.207 passed by the Sub Divisional Magistrate, [ENTITY], in [CASE NUMBER], after setting aside order dated 21.11.2017, passed by learned Sessions Judge, [ENTITY], in [CASE NUMBER].
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Having heard the learned counsel representing the parties and perused the material available on record vis-
-vis impugned order passed by the learned Sessions Judge, this court is persuaded to agree with the contention of Mr. [ENTITY], learned Senior Advocate that the learned Sessions Judge, has not properly appreciated the provisions contained in [SECTION] [ACT], which provides as under:
"whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local 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, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute".
9. Careful perusal of aforesaid provision of law clearly suggests that essential ingredient for invoking provisions of [SECTION] [ACT] is that there is apprehension of breach of peace due to dispute over any land or water or the boundaries thereof. It is quite apparent from the bare reading of aforesaid provision of law that Magistrate, while exercising aforesaid power, should be satisfied that there is likelihood of breach of peace. Apprehension of breach of peace must exist at the time of initiation of proceedings under [SECTION] [ACT]. True it is, that a Magistrate can not make initial order under [SECTION] on apprehension that breach of peace may happen at future point in time, rather, Magistrate, at the time of initiation of proceedings under [SECTION] [ACT] should be satisfied that there is likelihood of breach of peace on account of dispute between the parties.
Similarly, it is not necessary that at the time of passing of final order, apprehension of breach of peace should continue or exist.
10. Learned Sessions Judge, while reversing the finding recorded by the Sub Divisional Magistrate, has .
observed that trial court in detailed order has only mentioned about previous instances regarding disputed land and [ENTITY] and it has not mentioned anywhere that alleged dispute, for which [ENTITY] has been presented before him, is likely to cause breach of peace at the time of presentation of [ENTITY] or when verbal duel took place between complainant and respondents No.1 and 2. After having perused record, this court finds that the aforesaid finding returned by the learned Sessions Judge is totally contradictory to the record. Bare perusal of the order dated 20.6.2015, passed by the Sub Divisional Magistrate, clearly reveals that police presented [ENTITY] before Sub Divisional Magistrate pursuant to complaint dated 16.6.2015 having been filed by the complainant. Sub Divisional Magistrate, after having perused the information contained in [ENTITY] as well as statements of witnesses recorded by the police arrived at a definite conclusion that there is dispute between the parties pertaining to land comprised in Khasra No. 1929, situate at Beasa Mour, Akhara Bazaar, [ENTITY] and same is likely to cause breach of peace, where both the parties are claiming physical possession of the disputed land. Sub Divisional Magistrate, having been satisfied that there are sufficient grounds to proceed under [SECTION], issued summons .
to both the parties to attend his court in person or through their pleaders and to file written statements of their respective claims in respect of actual/physical possession or subject of dispute.
11. Order dated 20.6.2015 passed by the Sub Divisional Magistrate, clearly reveals that notice in terms of [SECTION] came to be issued by the Sub Divisional Magistrate to both the parties for 26.6.2015, whereafter, complainant and respondents No.1 and 2, both presented themselves before the Sub Divisional Magistrate, who subsequently, decided the [ENTITY], on the basis of evidence adduced on record by both the parties. In the aforesaid order, learned Sub Divisional Magistrate has specifically recorded that he having perused record, was of the opinion that dispute between the parties is likely to cause breach of peace and as such, finding returned by the learned Sessions Judge, in this regard, is totally contradictory to record and can not be allowed to sustain.
12. In preliminary order dated 20.6.2015 passed by Sub Divisional Magistrate, there is clear cut finding recorded by him that apprehension of breach of peace did exist, which in the opinion of this court, was sufficient to give jurisdiction to the Magistrate to initiate proceedings. There is nothing on .
record suggestive of the fact that either of the parties, being aggrieved of aforesaid order, laid challenge, if any, to the same in superior court of law. Moreover, when parties filed their written statements, they did not state that no dispute between the parties existed at the time of passing of order dated 20.6.2015, rather, respondents No.1 and 2 by way of filing written r statement claimed themselves to be in possession of the property in question.
13. Since, stand taken by the parties was contradictory to each other, it can be presumed or taken for granted that apprehension of breach of peace continued to exist and it was not a case where it could be said that no dispute existed as contemplated under [SECTION]. Learned Sessions Judge, while setting aside the order passed by Sub Divisional Magistrate, has observed that it has not been mentioned anywhere in the order that by the act of respondents, there is likelihood of breach of peace in the locality, but this court, having carefully perused provisions of law contained under [SECTION] has no hesitation to conclude that once Magistrate had given finding on this aspect of the matter at the time of taking cognizance or issuing notices under [SECTION] [ACT], specifically recording therein that he having perused record was of the opinion that dispute .
between the parties is likely to cause breach of peace, he was not required to repeat what he had said in the preliminary order dated 20.6.2015, in the final order also. In this regard, reliance is placed upon [PRECEDENT], wherein Hon'ble Apex Court has held as under:
"6. It is, therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the [ACT] requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of [SECTION] of the [ACT]. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub- s. (6) of [SECTION]. As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under [SECTION] nor was such a case set up by any party before the Magistrate or before the High Court. Further, it is well settled that under [SECTION] it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based. In [PRECEDENT], this Court pointed out as follows:
"The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied on these two conditions the section requires him to pass a preliminary order under [SECTION] and thereafter to make an enquiry under [SECTION] and pass a final order under [SECTION]. It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under [SECTION] is limited to the question to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate." (Emphasis ours)
7. In [PRECEDENT] it was held that once a Magistrate finds that there is a breach of peace it is not necessary that the dispute should continue to exist at other stages of the proceedings also. In this connection, the High Court observed as follows:
"Of course, Magistrate can under [SECTION], [ACT], assume jurisdiction only if he is satisfied that at the time of passing the preliminary order a dispute likely to cause a breach of the peace exists concerning any land etc. Once that is done the Magistrate is thereafter expected to call upon the parties concerned in such dispute to attend his court in person or by pleader and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The enquiry, therefore, after the initial satisfaction of the Magistrate and after the assumption of jurisdiction by him, has to be directed only as respects the fact of actual possession. At that time he has not to record a finding again about the existence of a dispute likely to cause a breach of the peace." (Emphasis ours)
8 To the same effect is a decision of the Hyderabad High Court in [PRECEDENT] where [ENTITY] J. observed as follows:-
"As regards this contention I am of opinion that once the Magistrate has given a finding to the effect that there is apprehension of breach of peace and that he has jurisdiction to take proceedings under [SECTION], [ACT], he can continue the proceedings. It is not necessary that at each stage he should be satisfied that there exists an imminent apprehension of breach of peace." (Emphasis ours)
9. We find ourselves in complete agreement with the observations made by the Punjab and Hyderabad High Courts, extracted above, which lay down the correct law on the subject.
Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the Civil Court.
11. For these reasons therefore, we are satisfied that the order passed by the High Court is legally erroneous and cannot be allowed to stand. The appeal is accordingly allowed. The order of the High Court is set aside and the order of the Magistrate is confirmed."
14. It is quite apparent from the aforesaid law laid down by the Hon'ble Apex Court that finding with regard to the existence of breach of peace at the time when final order was passed, is not required to be returned, especially, once a .
preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists. It is not necessary that the breach of peace should continue at every stage of the proceedings unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of [SECTION] of the [ACT]. Once the Magistrate records his/her satisfaction in the preliminary order, High Court or Sessions Court, while exercising revisionary powers can not go into sufficiency of the material, which satisfied the Magistrate.
15. [SECTION] [ACT] clearly provides that Magistrate before initiating proceedings, should be satisfied that dispute regarding immovable property exists and such dispute is likely to cause breach of peace, and once he/she is satisfied of aforesaid two conditions, he/she shall proceed to pass preliminary order under [SECTION] and thereafter make inquiry under sub-section (4) and pass final order under sub-section (6) and it is absolutely not necessary at the time of passing of final order for him/her to record that apprehension of breach of peace continues or exists. In the aforesaid judgment, Hon'ble Apex Court has held that inquiry under [SECTION] is limited to the question as to who was in actual possession on the date of passing of preliminary order, .
irrespective of rights of the parties and High Court or Sessions Court, while exercising revisionary powers, can not go into question of sufficiency of the material relied upon by the Magistrate to base his/her satisfaction.
16. Learned Sessions Judge, while reversing findings returned by Sub Divisional Magistrate, has also observed that dispute mentioned in the [ENTITY] was simple private dispute between two persons, which did not disturb law and order or cause breach of peace in the locality and as such, forum for getting relief is/was Civil Court of competent jurisdiction. Learned Sessions Judge has further held that dispute inter se parties is of civil nature and not new one or originated on that date when complainant moved application to SHO or when [ENTITY] was presented before the trial court, as such, only a Civil Court is/was competent to give relief to the parties/complainant. However, this court having carefully perused the provisions contained under [SECTION] [ACT], is in total disagreement with the aforesaid finding returned by the learned Sessions Judge, which otherwise is not tenable, especially in view of law laid down by the Hon'ble Apex Court in [PRECEDENT] (supra), wherein Hon'ble Apex Court has specifically held that High Court or any other court exercising revisionary jurisdiction, would not go into .
the sufficiency of the material, which satisfied the Magistrate.
17. True it is, that object of [SECTION] is not to provide the parties with an opportunity of bringing their civil disputes before a Criminal Court, or maneuvering for possession for the purpose of subsequent civil litigation and the real object of this provision is to arm the Magistrate with an additional weapon for maintaining peace within his/her area
18. [SECTION] casts a duty on the Magistrate to guard against abuse of provisions by persons using it with the object of getting possession of property while attempting to drive the other side to a Civil Court. Aforesaid provision empowers a Magistrate to proceed under [SECTION] [ACT], if in his/her opinion, dispute, if any, inter se, parties qua the immovable property is likely to cause breach of peace, either on the report of a police officer or upon other information and his/her satisfaction must reflect in the order passed by him/her, specifically mentioning therein grounds for his satisfaction.
19. [SECTION] [ACT] enable parties to adduce oral and documentary evidence and Magistrate is not only bound .
to receive such evidence as may be produced but he/she is competent to take such further evidence, if any, as he/she finds necessary for the proper adjudication of the dispute inter se parties.
20. If [SECTION] [ACT] is read in its entirety, it provides for different steps/stages to be followed by the Magistrate concerned, while adjudicating upon the [ENTITY] placed before him/her or any other information received by him/her to the effect that a dispute exists concerning any land, water or boundaries thereof, within his local jurisdiction, which is likely to cause breach of peace. Sub-section (1) thereof enjoins a duty upon the Magistrate to make an order in writing stating grounds of his being so satisfied that breach of peace exists on account of dispute between the parties concerning any land or water or boundaries thereof, after having received [ENTITY]/report or from any other source.
While passing order under [SECTION], Magistrate is required to specifically record findings that dispute inter se parties is likely to cause breach of peace.
21. Similarly, Sub-section (3) casts a duty upon the Magistrate to cause service of summons on the parties concerned, after his/her having taken cognizance under Sub-
section (1) of [SECTION] [ACT]. Sub-section (4) enables both the parties to adduce oral and documentary evidence and .
Magistrate is not only bound to receive all such evidence as may be adduced, but Sub-section (4) also empowers him/her to take such further evidence, if any, as he/she thinks necessary. [SECTION] [ACT] provides that in case, one of the parties to the dispute is able to persuade the Magistrate that no dispute exists, the Magistrate shall cancel the preliminary order passed by him/her under Sub-section (1) and also stay further proceedings subject to such cancellation but order of the Magistrate passed under Sub-
section (1) of [SECTION] [ACT] shall be final.
22. [SECTION] [ACT] empowers the Magistrate to pass an order declaring one party to be entitled to possession on the basis of evidence adduced on record by the respective parties, in terms of Sub-section [SECTION] [ACT]. [SECTION] [ACT] clearly provides that Magistrate can pass an order declaring a party to be entitled to possession thereof, until evicted therefrom in due course of law. Provisions contained under Sub-section (6)(a), further empower the Magistrate to restore the possession to a party entitled to same.
23. Having carefully perused the material annexed with the [ENTITY] filed by police before Sub Divisional .
Magistrate, this court has no hesitation to conclude that finding returned by the learned Sessions Judge, to the effect that dispute mentioned in [ENTITY] was simple private dispute between two persons, which did not disturb law and order or occasion in breach of peace in the locality, is not based upon proper appreciation of the material available on record. r
24. Similarly, this court is of the view that dispute of civil nature can also be taken note by Sub Divisional Magistrate, while exercising powers under [SECTION], if he/she is satisfied and is of the opinion that the dispute inter se parties, though it may be civil in nature, may result in breach of peace in the locality. Provisions of [SECTION] [ACT] enable a Magistrate to decide the question of possession on the basis of evidence adduced on record by the respective parties. In this regard, reliance is placed upon a judgment rendered by the Madras High Court in Indira v. Vasantha 1991 Crl. L.J. 1798, wherein it has been held as under:
"9. The jurisdiction conferred upon an Executive Magistrate under [SECTION] of the [ACT] is an exceptional one and the provisions of the section should have to be strictly followed while taking action under it. The object of the section is not to provide parties with an opportunity of bringing their civil disputes before a Criminal Court or of manoeuvring for possession for the purpose of .
the subsequent civil litigation, but to arm the Magistrate concerned with power to maintain peace within his local area. Therefore, a duty is cast on the Magistrates, to guard against abuse of provisions by persons using it with the object of getting possession of property while attempting to drive the other side to a Civil Court. The very jurisdiction of the Magistrate to proceed under this section, arises out of his satisfaction, of a dispute likely to cause breach of peace either on a report of a Police Officer or upon other information, which satisfaction must be reflected in the order which he should make in writing, stating the grounds of his satisfaction. This order which is the sine qua non of the proceedings, initiated under [SECTION], [ACT], must require the parties concerned in such dispute, to attend his Court in person or by pleader on a specified date and time, and to put in written statements of the irrespective claims as respects the facts of actual possession of the subject of dispute. After the passing of the preliminary order, a copy of the order shall be served in the manner provided for service of summons by the [ACT], upon such person or persons as may be directed by the said Magistrate and at least one copy should be affixed at some conspicuous place at or near the subject of dispute. This service of the copy of the order is provided under [SECTION] together, it is apparent that the service of a separate summons is not contemplated and the preliminary order itself shall have to be served in the same pattern as service of summons. This Court on more than one occasion, had held, that under [SECTION], [ACT], a Magistrate having jurisdiction, shall make an order in writing that he was satisfied either from a police report or other information that a dispute likely to cause breach of peace existed, and the grounds of his satisfaction should be stated clearly to .
indicate the application of the mind of the Magistrate in passing the preliminary order. The provision of making the order in writing after initial satisfaction and stating the grounds of his satisfaction have been held to be mandatory. Though the Magi rate was not obliged to elaborately set out the entire details of the information received by him, the preliminary order, on the face of it, should set out the grounds of the Magistrate being so satisfied or at least employ language to similar effect so as to indicate that he had applied his judicial mind to the information, in coming to the conclusion that there was inexistence a dispute, which dispute was likely to cause breach of peace, necessitating initiation of proceedings under [SECTION], [ACT] If there was absolutely nothing in the preliminary order showing expressly the grounds of his being so satisfied, which are in the nature of conclusions arrived at by him, on the report or information placed before him, it would be impossible for the parties called upon to put in their claims before him, to predicate as to what had led the Magistrate to pass such an order and to make their effective representations before him. This legal position is apparent from the decisions of this Court in [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]. On facts, has already been noticed, that except summons and memo dated 4-7-1989 and 20-7-1989 there is no material on record, to indicate the promulgation of a preliminary order as contemplated under [SECTION], [ACT], which as stated earlier, is the foundation, for the exercise of jurisdiction by the Executive Magistrate."
10. The learned counsel for the respondents relied upon the judgment of the Full Bench of the Allahabad High Court in [PRECEDENT] for the proposition that non-compliance with strict letter of law in formulating the order under [SECTION], [ACT], would not prevent the Magistrate from exercising jurisdiction to proceed with the case and that any defect in the procedure whether of illegality or irregularity was cured by [SECTION], [ACT] (new [SECTION], [ACT]) if there was no prejudice. As stated earlier, it is his submission that reference in the summons and memo dated 4-7-1989 and 20-7-1989 to the dispute regarding house No. 7/ 16 and proceedings having been initiated under [SECTION], [ACT], would be sufficient to presume, not only application of mind by the Magistrate to the facts placed before him, but also his satisfaction arrived at on the materials so placed. The law laid own by the same High Court [PRECEDENT], and, [PRECEDENT], , the view of the Patna High Court in [PRECEDENT], , the dictum of the Rangoon High Court and the view of the Judicial Commissioner, Peshawar enunciated in [PRECEDENT] and [PRECEDENT] respectively are to the same effect. In all these cases the Courts were considering the effect of the lack of a preliminary order or defects in the said order and held that they were only irregularities curable under [SECTION], [ACT] (new [SECTION], [ACT]) on the ground that no prejudice had been caused to the parties in each one of those cases. This Court in [PRECEDENT] held that requirements for passing a preliminary order under [SECTION], [ACT], was the satisfaction of the Executive Magistrate about the information with regard to breach of peace which grounds ought to be apparent on the face of the .
order itself and non-compliance with those legal requirements constituted an illegality affecting the very jurisdiction of the Magistrate, which could not be cured as an irregularity under [SECTION], [ACT] The difference between illegality and irregularity need not have to be gone into, though [SECTION], [ACT] takes within its fold only irregularity for two reasons, one is that I would prefer to follow the law laid down by this Court and the other is, in any event, the prejudice to the petitioners, leading to the failure of justice is apparent in these proceedings, in view of non recording of evidence and consideration of the same as provided under [SECTION](4), [ACT]
11. A reference was also made to the decision of the Privy Council in [PRECEDENT] to justify the approach of the Allahabad High Court and some other High Courts, holding that [SECTION], [ACT] would cure irregularities, if any, in the passing of the preliminary order. The Privy Council was concerned with a criminal trial. It was held therein that no serious defect in the mode of conduct of a criminal trial could be justified or cured by the consent of the Advocate of the accused. While dealing with the provisions of [SECTION], [ACT], as it then existed, relating to reading over of the depositions to witnesses to obtain an accurate record and to provide an opportunity to the witness to correct the words which occurred or the clerk had taken down and not to enable the accused or his counsel to suggest corrections, the Privy Council held that a more non-compliance of the provisions of [SECTION], [ACT], was not enough to quash the conviction, unless it was accompanied by occasioning of any failure of justice. In that context [SECTION], [ACT], was referred to.
12. The Privy Council in [PRECEDENT] observed as follows :
"The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity."
The view of the Privy Council in both aforementioned cases would be sufficient to steer clear of a "curable irregularity", since not only illegality is patent, but also prejudice to the petitioners is apparent.
13. The impugned order of the Sub-Divisional Magistrate does not disclose the documents placed before him by either party or his consideration of the same, to arrive at a conclusion. List of documents has not been appended to the order and the order does not also indicate any marking given to the documents produced by the respondents. [SECTION], [ACT], enables both the parties to adduce oral and documentary evidence and the Magistrate is bound not only to receive all such evidence as may be produced, but also is empowered to take such further evidence, if any, as he thinks necessary. The Magistrate under the 1974 Code cannot dispose of a proceeding on the basis of affidavits and, therefore, the evidence of witnesses will be essential for deciding the question of possession. The evidence contemplated includes both oral and documentary. In order to enable parties to adduce evidence, reasonable opportunity has to be given to produce documents and witnesses and the Magistrate will also have a duty to summon such witnesses as may be required by either party. This procedure prescribed under [SECTION] must be followed, .
for it is mandatory and the oral evidence adduced will have to be recorded and the documents properly proved according to rules of evidence. After the production of the oral and documentary evidence, the Magistrate will have to decide the question of possession on the evidence placed before him, which necessarily implies discussion of evidence placed before him.
25. In the case at hand, as is evident from the material available on record, learned Sub Divisional Magistrate, after having passed order dated 20.6.2015, wherein he recorded his satisfaction that dispute inter se parties is likely to cause breach of peace, not only issued notice to the respective parties, rather afforded an opportunity to them to lead evidence in support of their claims. Another finding returned by learned Sessions Judge that since the complainant did not depose regarding breach of peace in the locality rather she merely claimed her title and possession over the [ENTITY] (kiosk) in land in question adjoining to it and as such, there was no occasion for the Sub Divisional Magistrate to proceed under [SECTION], is also not tenable because bare perusal of [SECTION], nowhere suggests that the complainant in the complaint, on the basis of which [ENTITY] comes to be presented before Sub Divisional Magistrate, is required to specifically state that on account of dispute inter se parties, there is likelihood of breach of .
peace, rather, it is the investigating agency, which, after having received complaint, investigates the matter, is required to file [ENTITY] under [SECTION], specifically stating therein that in view of dispute inter se parties, there is possibility of breach of peace and law and order.
26. In the case at hand, perusal of [ENTITY] filed under [SECTION] clearly reveals that In-charge, Police Post, Akhara Bazaar, [ENTITY], after having concluded investigation, presented [ENTITY], specifically stating therein that on account of dispute inter se parties, there is possibility of breach of peace. Leaving it aside, perusal of [SECTION] [ACT] clearly suggests that it is incumbent upon the Magistrate, after having received [ENTITY] under [SECTION], to specifically record in his/her order that he/she in view of dispute inter se parties, is of the opinion that there is likelihood of breach of peace.
27. At the cost of repetition, it may be observed that High Court or any court exercising revisional jurisdiction, is not entitled to go into question of sufficiency of material, which satisfied the Magistrate, while exercising extraordinary power granted to him/her under [SECTION] [ACT], however, in the case at hand, it is not understood that on what basis, learned Sessions Judge has come to the conclusion that .
dispute inter se parties is of civil nature and only Civil Court has jurisdiction to decide the right, title or interest qua the disputed property. True it is that in proceedings under [SECTION], Sub Divisional Magistrate does not have jurisdiction to decide right, title or interest over the suit property, but, definitely, he/she having taken note of the evidence can return finding with regard to possession of the property in question.
28. By now, it is well settled that a Magistrate, while exercising power under [SECTION] is only required to see possession of a particular party on the date of preliminary order or prior to two months from the date of preliminary order and as such, main object of [SECTION] is to decide that who was in physical possession over the land in dispute and not legal possession supported by the title.
29. Record clearly reveals that as per [ENTITY] for the year 2001-02, [ENTITY] and [ENTITY] are owner-in-
possession of Khasra No. 1929, Khata No. 1054, and alleged [ENTITY] is constructed over the same. Similarly, perusal of Ext. P-1 i.e. compromise arrived inter se parties on 16.1.2014 reveals that disputed [ENTITY] was handed over to complainant, [ENTITY] in the presence of three witnesses.
Respondent No.1, in his cross-examination, admitted his .
signatures upon the compromise, as such, Sub Divisional Magistrate rightly arrived at a conclusion that from the date of handing over the possession to the date of dispute, i.e. land alongwith built up structure/kiosk was in the ownership as well as physical possession of the complainant. Tehsildar [ENTITY], in his report, has also stated that some part of said [ENTITY] stands constructed upon Khasra No. 1929 and other on 1055 and issue is still pending adjudication before Assistant Collector 1st Grade, [ENTITY].
30. Though, respondents No.1 and 2 had handed over possession of [ENTITY] on 16.1.2014 pursuant to compromise inter se parties, but they again made an attempt to dispossess the complainant from the [ENTITY] by breaking open locks, as such, Sub Divisional Magistrate rightly returned finding that respondents No. 1 and 2 with a view to grab possession of the kiosk/[ENTITY] built upon Khasra No. 1929 belonging to complainant, made an attempt to dispossess her.
31. In the case at hand, police, while filing [ENTITY] under [SECTION], specifically expressed apprehension with regard to possibility of quarrel inter se parties resulting into breach of peace, whereafter, Sub Divisional Magistrate having perused material adduced on record alongwith [ENTITY] .
formed specific opinion that there is likelihood of breach of peace and as such, finding returned by learned Sessions Judge to the effect that danger of breach of peace was not established before trial court at the time of initiation of proceedings under [SECTION], can not be allowed to sustain.
32. Consequently, in view of the aforesaid, order dated 21.11.2017 passed by the learned Sessions Judge, [ENTITY], Himachal Pradesh in [CASE NUMBER] is set aside. Order dated 29.4.2017 passed by Sub Divisional Magistrate, [ENTITY], Himachal Pradesh in [CASE NUMBER] is restored.
33. Petition stands disposed of in the aforesaid terms.
Pending applications, if any, stand disposed of.
([ENTITY] ) Judge.
September 24, 2018 [ENTITY]