1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.50 OF 2010 TAJ MOHAMMED SAGU PATEL AND OTHERS V/S SAMAD AKBAR PATEL AND OTHERS ... Shri S.S.Kazi, Advocate for the petitioners Shri V.D.Godbharale, APP for respondents 9 to 12 and Shri Y.M.Khan, Advocate for respondents 1 to 7. Respondent 8 served – absent. ... CORAM : S.B.DESHMUKH & S.S.SHINDE,JJ. Dated : 28.4.2010 PER COURT :- 1. Heard respective counsel. 2. Petitioners have sought following reliefs in the petition :- " (A) This Criminal Writ Petition may kindly be admitted and allowed. (B) The impugned notice dated 30.11.2009 issued by the Sub Divisional Magistrate, Vaijapur, bearing No.2009 MAG/Criminal Procedure Code-145/1 be quashed and set aside. (C) Pending hearing and final disposal of this Criminal Writ Petition the proceedings pending before the learned Sub-Divisional Magistrate in connection with notice dated dated 30.11.2009,bearing No.2009 MAG/ Criminal Procedure Code-145/1 be stayed. 2 (D) Ad-interim relief in terms of prayer clause (C) may kindly be granted. (E) Record and proceedings may be called. (F) Any other suitable relief be granted in favour of the petitioner." Amongst all these prayers, prayer clause (B) is the main prayer. By this prayer, the petitioners have sought quashment of the notice dt. 30.11.2009 issued by the Sub Divisional Magistrate, Vaijapur. This petition appears to have been filed on 13.1.2010. 3. This Court by the order dt. 25.1.2010 issued notice and granted ad-interim stay to further proceedings pending before the respondent No.11 in respect of the notice issued to the petitioner dt. 30.11.2009. It is not in dispute that subject matter of the said notice is agricultural land bearing Gut No.246 admeasuring 16 acres. The Sub Divisional Magistrate found threat to the public peace and tranquility due to the dispute between two parties. According to him, first party consists of ten persons and another party consists of eight persons. Said notice has been issued under Section 145(1) of the Code of Criminal Procedure (“Code”). 4. On behalf of respondent No.10, affidavit in reply is filed. It is sworn by one Dhananjay Yerule, Police Inspector, Khultabad Police Station. Learned APP points out from this affidavit in reply the contention 3 raised that the petition is not maintainable. According to him, issuance of show cause notice under section 145 of the Code is challenged in this writ petition. He further submitted that Sub Divisional Magistrate is empowered under section 145 of the Code to issue such a notice and hold hearing of the proceeding. Learned APP relies on the judgment of the Supreme Court in the matter of Special Director Vs. Mohd. Gulam Ghouse [(2004) 3 SCC 440], wherein, the Supreme Court has opined that in case of issuance of show cause notice, challenge can be considered by the High Court in writ jurisdiction, if the authority issuing such a notice does not have power and jurisdiction. It has been reminded by the Supreme Court to the High Court not to entertain such writ petition without examining the power and jurisdiction of issuing notice by the authority concerned. 5. We have seen the earlier order passed by the learned Single Bench of this Court (Coram : V.R.Kingaonkar,J.), in Writ Petition No.678 of 2009, dated 24.8.2009. Copy of the said order is annexed with the petition. Shri Kazi, learned Advocate points out from paragraph No.2 of this order that the order passed by the Sub Divisional Officer, dated 7.7.2009 in a proceeding under section 145 of the Code, appointing Tahsildar as a Receiver to take the possession of the land Gut No.246 at village Kanakshil, Taluka Khultabad was the subject matter of the said petition. In our opinion, the order passed by the Sub Divisional Officer was challenged before the learned Single Bench of this Court. Distinctively, in the case on hand, there is no order passed by the Sub 4 Divisional Officer and proceeding under Section 145 of the Code is pending before the Sub Divisional Magistrate. Learned APP pointed out from the affidavit paragraph No.3 that the petitioners entered appearance before the learned Sub Divisional Magistrate on 23.12.2009 and sought time for filing the reply. Time was granted till 4.1.2010. Copy of the application made by the petitioners seeking time is on record as Annexure R/1. 6. Shri Khan, learned Advocate pointed out the reply affidavit filed on behalf of respondents 5 to 8. Shri Kazi, learned Advocate for the petitioners points out the affidavit in rejoinder, filed on behalf of the petitioners. 7. Since, the proceeding under Section 145 of the Code is pending before the competent authority, we are not recording any opinion on the merits of the case. Shri Kazi, learned Advocate for the petitioners tried to address the court on merits. In our opinion, in view of the judgment of the Supreme Court, referred to above, no case to entertain this writ petition under Article 226 of 227 of the Constitution of India has been made out. 8. In the result, Writ Petition stands dismissed. Ad-interim relief, needless to say, stands vacated. No order as to costs. 9. It is made clear that we have not recorded our opinion on 5 any question nor entered into the merits of the case. Parties are at liberty to raise appropriate contentions before the authority concerned, who shall decide the same on merits and as expeditiously as possible. (S.S.SHINDE,J.) (S.B.DESHMUKH,J.) ... akl