IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No. 25 of 2008. Reserved on 19.8.2008. Date of Decision: 21 .08.2008. _______________________________________________________ Jagat Ram. ….Petitioner Versus Partap Chand. … Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?. Yes. For the Petitioner : Mr. Vikas Bhardwaj, Advocate. For the respondent : Mr. Navlesh Verma, Advocate. SURINDR SINGH, j. By means of this petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, in short the ‘Code’, the petitioner has challenged the order dated 29.10.2007 passed by learned Additional Sessions Judge (Fast Track Court) Dharamshala, in RBT No. 4-P/2006, whereby he affirmed the final order of Sub Divisional Magistrate (SDM) Palampur purported to have been passed in the proceedings under Section 145 of the Code, whereby the petitioner herein was prohibited from stopping the flow of water for irrigation from his khasra number 39, to the fields of the respondent. Succinctly, the facts giving rise to this petition are that the respondent in his application requested the S.D.M. to restore the irrigation facility stopped to his fields by the petitioner, which he was enjoying since his ancestors. The respondent did not mention the Whether the reporters of the local newspapers are allowed to see the judgment? Yes. - 2 - provision under which he had prepared his application/complaint nor he alleged any dispute which was likely to cause the breach of peace. The application aforesaid was only presented to the reader of the S.D.M. On 10.6.2003, it appears that without bringing it to the notice of S.D.M., the reader marked it to the Tehsildar Palampur for his report and on 13.6.2003 in turn, the said application was forwarded by him to the field kanungo with the direction to visit the spot and report. On the same day, i.e, on 13.6.2003, the Field Kanungo visited the spot and prepared a KHAKA (Sketch) of the spot, wherein he pin-pointed the Kuhal (water channel) showing the lands of parties and prepared the report but no revenue record was attached for assistance of the Court. He submitted his report to the Tehsildar wherein he stated that the petitioner was reluctant to provide the water through his land unless Partap Chand allowed the water to pass through the land in his possession. On 16.6.2003, the Tehsildar visited the spot but Jagat Ram (petitioner) was not present, as such the Tehsildar endorsed and forwarded the report of field kanungo to the S.D.M. wherein there was no reference of causing any breach of peace. The S.D.M. took up the matter on 21.7.2003 in the presence of the respondent Partap Chand and without recording his statement and drawing up the notice as per sub-section (1) of Section 145, issued the notice for the presence of the petitioner Jagat Ram. His presence was procured on 12.1.2004. The S.D.M. proceeded to record the statements of parties on 16.2.2004 without affording any opportunity to cross-examine any of the witnesses. - 3 - On 10.6.2004, the S.D.M. felt the need to go through the “Rewajat Aabpashi” thus adjourned the case. The copy of ‘Aabpashi’ was procured. On 29.7.2004, the arguments were heard, thereafter it was repeatedly adjourned four times. During the period right from the moving of complaint till conclusion of evidence and arguments, it was not known to any of the parties what was the nature of the proceedings going on, whether it was an administrate enquiry or the proceedings were being conducted under some provision of the Code. But however, on 23.11.2004 the Sub Divisional Magistrate was certain and firm that he knew, he was acting under Section 145 of the Code, thus he passed the final order on 23.11.2004 under this Section which can be usefully reproduced here under:- “Complaint under Section 145 Cr.P.C.” ORDER This private complaint filed by the complainant with the prayer that his land which is situated in Mohal Ghdoral, Mouza Menjha, Tehsil Palampur, Distt. Kangra measuring 6 to 7 kanals has been rendered dry due to the stoppage of irrigation channel by the respondent and further prayed that irrigation facility to the land be restored. Application was sent to the Naib Tehsildar, Palampur for report who procured the report from Field Kanungo, Palampur who has stated that Jagat Ram has stopped the water channel to the applicant on the plea that his khasra no. 39 which is situated below the road and in this khasra no. one part is with the applicant and respondent Jagat Ram put the condition that he will release the water only if the applicant Partap Chand release this part of that khasra no. to him. - 4 - In his statement Partap Chand has stated that he has been receiving water since 1962 through the existing channel to his field which has been stopped by the respondent. Respondent Jagat Ram has stated contrary but there is no substance in the statement of respondent Jagat Ram. “Riwajat Aavpashi” also supports the contention of the applicant wherein it has been clearly stated that whenever the fields get ready is given water as per requirement and in view of this fact the respondent has obstructed the water channel to the applicant. Keeping in view the report of Revenue Field Agency and “Riwajat Aavpashi” respondent is prohibited from stopping the irrigation facility to the applicant and accordingly directed to open the same. Copy of the order is issued to the S.H.O. Palampur for compliance. Present file be consigned to the record room after completion. Announced. Sd/- Sub Divisional Magistrate, Palampur (seal)” The above order was assailed by the petitioner in revision preferred before the court of Sessions which was finally heard and dismissed by learned Addl. Sessions Judge, without appreciating the law applicable to it. Thus the petitioner was compelled to approach this Court and filed the present petition challenging the orders of both the Courts below being illegal, contrary to law having passed without jurisdiction. I have heard the learned counsel for the parties and have carefully perused the record and law applicable to the case and I have found that the assumption of jurisdiction by the S.D.M. in the - 5 - matter is wrong and illegal and his final order passed under Section 145 of the Code is unsustainable. On the perusal of the record of the S.D.M, it is not made out from which stage he assumed the jurisdiction in the matter under Section 145 of the Code. The application moved by the respondent also did not mention any provision of the Code under which it was preferred. In fact Chapter-X of the Code deals with ‘maintenance of public peace and tranquility’ and particularly Part-D of the said Chapter deals with ‘disputes relating to immovable property’ and Section 145 of the Code provides a complete procedure where the dispute concerning ‘land or water’ is likely to cause breach of peace. Section 145 of the Code reads as under :- “145. Procedure where dispute concerning land or water is likely to cause breach of peace.- (1) 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 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 put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. - 6 - (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute. Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub- section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso of sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). 7. When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. - 7 - (8) If the Magistrate is of the opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceedings thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either part, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.” (emphasis supplied) The language of sub-section (1) of Section 145 is clear and unambiguous that the Magistrate can arrive at his satisfaction both from the police report or from other information that this is a dispute likely to cause a breach of peace. The object of Section 145, is to prevent breach of peace and for that even to provide a speedy remedy by bringing the parties before the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent Court. Thus, the jurisdiction of the Magistrate under Section 145 of the Code is based upon two conditions:- (i) a dispute regarding immovable property exists which includes ‘land or water’ as per sub-section 2 of Section 145. (ii) Such a dispute is likely to cause a breach of peace. Once the Magistrate is satisfied of these two conditions, he is obliged to record his satisfaction and the section makes it - 8 - imperative upon him to pass a preliminary order under sub-section (1) and he is required to make an enquiry under sub-section (4). The provision of sub-section (4) is applicable only if a Magistrate can come to a definite finding that any particular party had been dispossessed within a period of two months preceding the relevant date and pass a final order under sub-section (8) of Section 145. However, it is not necessary that at the time of passing the final order, the apprehension of breach of peace should continue to exist. If otherwise, the Magistrate finds that such an apprehension is there, in that event by virtue of sub-section 10 of Section 145 nothing derogates his powers to proceed under Section 107 of the Code. Section 145 is a preventive provision attended to prevent a breach of peace. If there is no dispute likely to cause breach of peace, the proceedings under this section cannot be initiated and otherwise also, the final order passed is always subject to the order of a court of competent jurisdiction. In the instant case, neither the Sub Divisional Magistrate had recorded the preliminary order nor the reason for his satisfaction. He acted merely on the application of the respondent which did not say anything about the breach of peace and on getting the report from Tehsildar summoned the petitioner, as if he was issuing a process in a non-cognizable case. He initiated the proceedings without being satisfied about the above two conditions required by sub-section (i) of Section 145 which is sine qua non. In absence of any likelihood of breach of peace he ought to have refused to take any action under Section 145 of the Code even on the report of Tehsildar which also did not mention about the existence of breach of peace. However, to satisfy himself, the Magistrate could have - 9 - even called the police report with respect to existence of breach of peace. In the case in hand, otherwise also, the dispute was with respect to the use of water which falls within the purview of Section 147 of the Code and not under Section 145 but even to proceed under this section, the requirement of existence of a a dispute likely to cause breach of peace is also imperative and the procedure is almost the same as provided in Section 145. Thus in absence of existence of breach of peace, the S.D.M. could not have assumed the jurisdiction under Section 147 also. Since there is no material on record to conclude that there is any dispute likely to cause the breach of peace, the Sub Divisional Magistrate had no power to try and determine the matter under Section 145 of the Code at all which fact was not considered by the learned Additional Sessions Judge while passing the impugned order in Criminal Revision, therefore the order dated 23.11.2004 passed by the Sub Divisional Magistrate in Cri. Case No. 48 of 2004 and its affirmation by the revisional Court, both are unsustainable and are hereby quashed and set aside, consequently the complaint/application of the respondent stands dismissed. The parties to bear their own costs. (Surinder Singh) Judge. August 21 , 2008. (bm)