HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 19020 of 2014 Petitioner :- [ENTITY] Respondent :- [ENTITY] Thru Chief Secy. And 13 Others Counsel for Petitioner :- [ENTITY],[ENTITY] Counsel for Respondent :- Govt.Advocate,[ENTITY] Hon'ble [ENTITY],J.
1. By means of present criminal misc. petition, the petitioner seeks quashing of impugned orders dated 29.9.2014 passed by Additional Sessions Judge, Court No. 12 Bulandshahar in [CASE NUMBER] ([ENTITY] vs. State of U.P. and others) and 4.2.2013 passed by Sub Divisional Magistrate, Sikandrabad, Bulandshahar in [CASE NUMBER] ([PRECEDENT] and [ENTITY] and nine others [2nd party] ) under [SECTION] and [SECTION] [ACT], P.S. Sikandrabad, District Bulandshahar.
2. The factual matrix of the case is as follows :
3. Admittedly the respondent nos. 4 and 5 purchased undivided 2/15 share from [ENTITY] and [ENTITY] (sons of [ENTITY]) through sale deed dated 18.8.2012 of Khata No. 1052, Gata No. 928 area 2.048 hec. and Gata No. 935(M) area 0.942 hec. (total area 2.992 hec.) situated at Sikandrabad Dehat, Pargana and Tehsil Sikandrabad, District Bulandshahar. The name of the purchasers have been mutated in revenue record vide order dated 29.9.2012 passed by Tehsildar Sikandrabad. They moved an application dated 20.11.2012 under [SECTION] [ACT] against [ENTITY] and nine others (co-tenure holders) before Sub Divisional Magistrate with averment that they are in peaceful possession of land so purchased but the opposite parties, who are of criminal mentality are trying to illegally evict them and also to remove curly flower crop. That there is possibility of breach of peace and inspite of undertaking and execution of personal bond in proceeding under [SECTION] [ACT], the opposite parties are not ready to maintain peace. On above application a report from concerned police station was called. The S.H.O. of P.S. concerrned submitted report dated 17.12.12 recommending the attachment of plot nos. 928 and 935(M) for maintenance of peace. On such recommendation in response to show cause notice, the petitioner [ENTITY] filed written objection dated 4.2.2013 with averment that the land of Khata No. 1052 is ancestral agriculture land of opposite party nos. 1 to 10 and [ENTITY], [ENTITY], [ENTITY] (sons of [ENTITY]). The land of [CASE NUMBER] was purchased by [ENTITY], [ENTITY], [ENTITY] and [ENTITY] (sons of [ENTITY]). There was a dispute between the co-sharers and to resolve the controversy a mutual partition dated 16.11.2000 took place amongst co-sherers. The land of Khata no.1054 and 1109 was given to [ENTITY] and [ENTITY] (sons of [ENTITY]), [ENTITY], [ENTITY] and [ENTITY] (sons of [ENTITY]) and Khata No. 1052 was given in share of opposite party nos. 3 to 10. In view of the above, the transferor [ENTITY] and [ENTITY] has no share in land of Khata No. 1052.
4. Further on the basis of aforesaid mutual partition a Partition Case No. 157 of 2009 ([ENTITY] vs. [ENTITY] @ Govind and 18 others including Gram Sabha) was filed under [SECTION] of [ACT] (hereinafter referred to as 'Act') before Sub Divisional Magistrate, Sikandrabad, which is pending for decision but on the basis of allotment of shares (Quras), the preparation of preliminary decree was ordered by Sub-Divisional Magistrate on 6.8.2009 in the aforesaid case.
5. The petitioner further submits that the respondent nos. 4 and 5 submitted an application on 15.10.2012 for impleadment as a party in aforesaid case and the same was allowed on 1.1.2013. The Sub Divisional Magistrate instead of deciding aforesaid partition case and passing final decree, erroneously and arbitrarily is trying to proceed under [SECTION] [ACT] The proceedings are not legally maintainable. The petitioner has also filed [CASE NUMBER] for relief of permanent injunction and cancellation of sale deed against respondent nos. 4 and 5 on the ground that transferors have no right to alienate the properties of Khata No. 1052 after partition.
6. After hearing both the parties and acting on police report, the Sub-Divisional Magistrate recorded his satisfaction that there is possibility of breach of peace in between parties on spot and by impugned order dated 4.2.2013 passed an order of attachment for whole area of two Gata nos. 928 and 935(M).
7. Aggrieved by aforesaid order, the petitioner filed [CASE NUMBER] before Sessions Judge, Bulandshahar, which was dismissed vide order dated 29.9.2014 by Additional Sessions Judge, Court No. 2, Bulandshahar.
8. Aggrieved by aforesaid two orders petitioner has come before this Court.
9. Heard Sri [ENTITY], learned counsel for the petitioner along with Sri [ENTITY], Advocate and Sri [ENTITY], learned counsel for the respondents and learned AGA for the State.
10. Learned counsel for the petitioner contended that [CASE NUMBER] ([ENTITY] vs. [ENTITY] and others) for relief of permanent injunction and cancellation of sale deed dated 18.8.2012 is pending before the Civil Judge (Jr. Division), Bulandshahar against respondent nos. 4 and 5 besides [CASE NUMBER] under [SECTION] of Act. As per well established law if civil suit is pending, the proceeding under [SECTION] [ACT] are not maintainable and in view of above, both orders passed by the court below are against law.
11. Per contra, learned counsel for the respondent Nos. 4 and 5 contended that there was all possibility of breach of peace and for this reason the order of attachment passed by Sub-Divisional Magistrate is in process to ensure maintenance of peace and good at law.
12. The argument advanced by the learned counsel for the petitioner that the proceedings under [SECTION] and [SECTION] [ACT] are not maintainable as civil suit is pending has no substance as admittedly no interim order has been passed in suit by Civil Court. In case of [PRECEDENT]) Lucknow Bench of this Court relying upon the law laid down by the Hon'ble Apex court in the case of [PRECEDENT] and [PRECEDENT] has held that "civil suit cannot operate as a bar against the jurisdiction of Executive Magistrate under [SECTION] and [SECTION] [ACT] for performing his function for preventing breach of peace."
13. Now the point for determination is propriety of impugned order passed by Sub-Divisional Magistrate. The Hon'ble Supreme Court in the case of [ENTITY] vs. State of Uttrakhand 2013 (80) ACC 599 (SC) has held as under :
12. "The above order would indicate that the SDM has, in our view, wrongly invoked the powers under [SECTION],[ACT] Under [SECTION], a Magistrate can pass an order of attachment of the subject of dispute if it be a case of emergency, or if he decides that none of the parties was in such possession, or he cannot decide as to which of them was in possession. [SECTION] and [SECTION] of the [ACT] together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace and [SECTION] cannot be separated from [SECTION][ACT] It can only be read in the context of [SECTION], [ACT] If after the enquiry under [SECTION] of the Code, the Magistrate is of the opinion that none of the parties was in actual possession of the subject of dispute at the time of the order passed under [SECTION] or is unable to decide which of the parties was in such possession, he may attach the subject of dispute, until a competent court has determined the right of the parties thereto with regard to the person entitled to possession thereof.
13. The ingredients necessary for passing an order under [SECTION] (1)of the Code would not automatically attract for the attachment of the property. Under [SECTION], a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under [SECTION] of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under [SECTION], must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before Magistrate when the submission of the parties filed, documents produced or evidence adduced.
14. We find from this case there is nothing to show that an emergency exists so as to invoke [SECTION] and to attach the property in question. A case of emergency, as per [SECTION] of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that [ENTITY] has started construction in the property in question, therefore, possession of property is with the appellant - [ENTITY], whether it is legal or not, is not for the SDM to decide."
14. In view of aforesaid decision, on the basis of a mere case of apprehension of breach of peace, the Sub-Divisional Magistrate is not competent to pass an order of attachment under [SECTION] [ACT] unless a case of emergency exits and satisfaction to that effect is recorded. The said order would be just when Executive Magistrate decides that none of the parties was in possession or he cannot decide as to which of them was in possession. The order should must be reasoned and speaking, keeping in view above three circumstance of facts.
15. The possession has two ingredients, one animus and second corpus. On the basis of sale deed dated 18.8.2012, there is reason to believe that along with passing of title, the respondent nos. 4 and 5 have animus to possess 2/15 share. But as per consistent law laid down by Hon'ble Apex Court in cases of [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] that "an undivided share of a co-parcener can be subject matter of sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of a Court in a partition suit, or by settlement among the co-sharers", second ingredient of possession 'Corpus' appears incomplete in case in hand. As such it could not be held that actual physical possession of undivided share was handed over. Besides above the learned Sub-Divisional Magistrate has attached entire areas of both Gatas, which apparently appears wrong. On application of respondent nos. 4 and 5, the police report was called. The S.H.O. of police station concerned reported that both parties have been booked under [SECTION] of [ACT] and they have executed personal bond with an undertaking to maintain peace. The land appears to be disputed and recommendation for attachment and Supurdagi of both Gatas was made to maintain peace. Ignoring the entire case of mutual partition dated 16.11.2000, pendency of [CASE NUMBER] under [SECTION] of Act, allotment of share (Quars) and his own or predecessor's order for preparation of preliminary decree, the Sub-Divisional Magistrate has passed the impugned order without making any effort to inquire whether the first party (respondent nos. 4 and 5) were in actual possession to the extent of 2/15 share on the basis of sale deed. After order of preparation of preliminary decree it was duty of Sub-Divisional Magistrate to have decided his priority in disposal of partition case as the matter was pending since 2009. Executive Magistrate on the basis of police report has just opined as under:
esjs }kjk i=koyh dk voyksdu fd;k x;k o i{kx.kksa dks lquk x;kA foi{kh izFke o f}rh; i{k }kjk nkf[ky fd;s x;s lk{;ksa ,oa izHkkjh fujh{kd fldUnzkckn dh vk[;k fn 18-12-2012 dk voyksdu fd;k x;k ftlls Li"V gS fd ekSds ij i{kksa ds e/; 'kkfUr Hkax gksus dk iw.kZ vUns'kk gSA ,slh n'kk esa fookfnr Hkwfe dks /kkkjk &[SECTION] n0iz0lafgrk ds rgr dqdZ dj fdlh fu"i{k O;fDr dh lqiqnZXkh esa fn;k tkuk U;k;ksfpr izrhr gksrk gSA uD'kk utjh fookfnr Hkwfe dh izfr layXu gSaA
16. On the basis of aforesaid opinion, the order of attachment has been passed. Nowhere the Sub-Divisional Magistrate has recorded his satisfaction to the effect that there was a case of emergency and he proceeded only on the basis of a mere case of apprehension of breach of peace.
17. In view of above discussion, the impugned order passed by the Sub-Divisional Magistrate is non-speaking, unreasonable and arbitrary in nature and deserves to be quashed and in consequence the order passed by Sessions Judge in [CASE NUMBER] is also liable to be quashed.
18. Accordingly, the writ petition is allowed. The orders dated 29.9.2014 passed by Additional Sessions Judge, Court No. 12 Bulandshahar in [CASE NUMBER] ([ENTITY] vs. State of U.P. and others) and 4.2.2013 passed by Sub Divisional Magistrate, Sikandrabad, Bulandshahar in [CASE NUMBER] ([PRECEDENT] and [ENTITY] and nine others [2nd party]) under [SECTION] and [SECTION] [ACT], P.S. Sikandrabad, District Bulandshahar are quashed and in the given facts and circumstances, the Sub-Divisional Magistrate is directed to decide the partition case no. 57 of 2009 after giving opportunity of hearing to both the parties preferably within a period of three months from the date of production of certified copy of this order.
Order Date :- 06.10.2015 S.S.