RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.317 of 2009 (Under Article 227 of the Constitution of India) Suraj Gulati …………Petitioner Versus State of Uttarakhand & others …………Respondents Dated: July 26, 2011 Sri L.K. Tewari, Advocate for the petitioner Sri P.S. Bora, Brief Holder for the State/respondent nos.1 and 2 Sri Rajesh Sharma, Advocate for respondent nos.3 to 8. HON. SERVESH KUMAR GUPTA, J. Heard learned counsel for the parties and perused the entire material available in the file. By way of this writ petition petitioner Suraj Gulati has challenged the order of Sub Divisional Magistrate Rishikesh dated 25.8.2007 passed in Case No.2/2007, Suraj Gulati Vs. Jitendra Kumar & others u/s 145, 146(1) Cr.P.C. and has sought quashing of the same along with the entire proceedings of the case no.2/2007, as stated above. It appears from the record of this writ petition that there is a very very old building almost 110 years old situated in the local area of Rishikesh town and this building is in the shape of Dharamshala. It was primarily for the short stay and comforts of the ongoing pilgrims to the way of old Badrinath and Kedarnath shrines. This Dharamshala’s land in the form of lease was in the name of some Mohri Bibi widow of late Brahm Dutt resident of Calcutta. Over this land a Dharamshala was got constructed by Mohri Bibi. It was named as Tej Pal Brahm Dutt Calcutte Wali Dharamshala. This lease deed was executed in 1904 by some Mahant Ram Ratan Dass and in the passage of so much decades, it was used by the pilgrims as stated above. It has 32 rooms along with other infrastructure like toilets, yards etc. 2 First time in 1966, this was recorded as Dharamshala in the Municipal record of Rishikesh as is adverted from annexure 3 of the counter affidavit. It also transpires that respondents 3 to 8 somehow or other, occupied some rooms in the Dharamshala allegedly as tenants. This Suraj Gulati and his family, while as the local resident of Rishikesh having noticed that this Dharamshala has almost lost control of its owners or lessers or their successors and is not being properly looked after by any Manager, made a plan and in order to secure the ownership of the same the real brother of Suraj Gulati named Sunil Gulati went to Calcutta and got executed a special power of attorney on 29.3.2007 allegedly from the generational heirs of Mohri Bibi. The names of these successors are Shankar Prasad Bajaj, Jagmohan Prasad Bajaj, Smt. Lalita Devi Bajaj, Arvind Bajaj, Smt. Jyoti Saraff, Smt. Savitri Devi Bajaj, Anand Bajaj, Smt. Sushila Devi Bajaj, Smt. Preeti Lata Goenka and Miss Khushboo Bajaj. These persons claiming themselves to be the heirs in succession of Mohri Bibi, executed a special power of attorney in the name of Sunil Gulati for performing the lease deed of the property in question. Sri Sunil Gulat at the strength of this special power of attorney executed a sale deed on dated 12.4.2007 in favour of his real brother Suraj Gulati and mother Smt. Shanti Gulati. On the basis of this sale deed, Sri Suraj Gulati and his mother wanted to take the possession of the entire Dharamshala, then dispute arose. So, there was every likelihood of breach of peace over the concerned land/ Dharamshala. The police went at the spot and submitted its elaborate report to the Sub Divisional Magistrate wherein it has been categorically stated that Sri Sunil Gulati on the basis of special power of attorney has executed the sale deed instead of a lease deed and that sale deed has been got registered in the office of Sub Registrar. This has been the subject of bone of contention between Suraj Gulati and the respondents. Suraj Gulati wants to take possession over all the Dharamshala on the basis of that sale deed and he has got locked all the rooms which were not occupied by the respondents or any other pilgrim. He is creating all source of impediments to everybody in using that Dharamshala. He has deputed his own guards there and threatening to all the respondents for vacation of their respective rooms. So, at this report Sub Divisional Magistrate has passed the order u/s 145/146(1) Cr.P.C. and has attached the property in question. 3 The learned S.D.M. has mentioned in his order that the matter appears to be grossly serious, so to maintain the public tranquility in the area, orders u/s 146(1) Cr.P.C. are being passed. Learned counsel for the petitioner has relied upon a Hon’ble Supreme Court judgment in the case of Mathura Lal Vs. Bhanwar Lal reported in 1980 AIR S.C. 242. The Hon’ble Apex Court has held that: - “Ss. 145 and 146 of the Criminal P.C. together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries. If S.146 is torn out of its setting and read independently of S.145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment. But S.146 cannot be so separated from S.145. It can only be read in the context of S.145. Contextual construction must surely prevail over isolationist construction. Otherwise, it may mislead. In a case of emergency, a Magistrate may attach the property, at any time after making the preliminary order under S.145 (I). There is no express stipulation in S.146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied. Far from it. The obligation to proceed with the enquiry as prescribed by S.145, sub-s. (4) is against any such implication. The only provision for stopping the proceeding and canceling the preliminary order is to be found in S.145 (5) and it can be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of S.146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace.” Reading carefully what has been held by the Hon’ble Apex Court, there appears to be nothing wrong in the impugned order passed by the learned S.D.M. The contention of learned counsel that the order is a 4 composite one, is not acceptable because he has mentioned his satisfaction, as required u/s 145(1) Cr.P.C. in one separate paragraph of the order, while the order of attachment is in distinct paragraph. There was no need to pass these orders on the separate sheets, although in the same language but after writing the same title on different paper. If two different portions of the order have been passed in different paragraphs under the same title, then the order cannot be called to be so composite as to amalgamate both the paragraphs in each other. The meaning and intention of both the paragraph of the order are quite expressive and there appears to be no illegality in the order. So, this writ petition is devoid of merits and is liable to be dismissed. Writ petition is dismissed. However, it is made clear that the petitioner if feels so then raise a question of title in the competent court having civil jurisdiction over the area. (Servesh Kumar Gupta, J.) July 26, 2011 Rdang