1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: O R D E R :: S.B. CRIMINAL REVISION PETITION NO.65/2006 (Khalil & Ors. Vs. State of Rajasthan & Ors.) S.B. CRIMINAL REVISION PETITION UNDER SECTION 397 & 401 CR.P.C. DATE OF ORDER : 07th July, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Ranjeet Joshi, Mr. Sunil Mehta for the petitioners. Mr. Sandeep Mehta for the respondents. Mr. L.R. Upadhayaya, Public Prosecutor. BY THE COURT : 1. This revision petition is directed against the order dated 19.1.2006 passed by the learned Additional District and Sessions Judge, Parbatsar, District Nagaur in Criminal Revision No.54/2004, whereby, he set aside the order dated 23.12.2002 passed by the learned Sub-Divisional Magistrate, Parbatsar. In the order dated 23.12.2002, the learned Sub-Divisional Magistrate, Parbatsar on a compliant filed by the SHO, Makrana 2. on 9.4.97 under Section 145 Cr.P.C. dropped the preliminary order passed under Section 145(1) Cr.P.C. and came to the conclusion that there is no likelihood of the breach of piece and it is also not proved that party No.1 i.e. the respondents were dispossessed two months prior of the passing of the preliminary order, therefore, he withdraw the order of attachment of the mine of quarry No.69 and ordered to hand over the possession to party No.2, who are the petitioners in the present revision petition. In revision, the first revisional court i.e. the learned Additional District and Sessions Judge, Parbatsar, District Nagaur has partly allowed the revision petition by setting aside the order dated 23.12.2002 passed by the learned Sub-Divisional Magistrate, Parbatsar and came to the conclusion that it is not proved as to who were in possession over the disputed quarry on 10.4.1997, therefore, he ordered for appointment of the Receiver belonging to the Department of Mines. 2. Against this order, the present revision petition has been filed. It has been contended by the learned counsel for the petitioners that the petitioners purchased this land under the Bapi Rights in the year 1972 and after 25 years, the compliant was filed before the police and proceedings under Section 145 Cr.P.C. were initiated and the possession was taken over from the petitioners, which was later on withdrawn by A.C.M., 3. Makrana on 22.9.1998 by dropping proceedings under Section 145 Cr.P.C. and the possession of which was handed over to the petitioners as revealed from Page 4 of the order of the learned Sub-Divisional Magistrate, Parbatsar. 3. According to the learned counsel when the petitioners are continuously in possession, they cannot be dispossessed under the garb of proceedings under Section 145 Cr.P.C. Learned counsel also submits that still the petitioners are in possession over the disputed land in view of the order passed by this Court on 25.1.2006 in the present revision, whereby, the effect and operation of the order dated 19.1.2006 passed by the learned Addl. District and Sessions Judge, Parbatsar, District Nagaur was stayed. According to him, civil suit is also pending, where, the parties will get their rights resolved as they are entitled to carry mine works under the Rules, hence, this revision petition be allowed. 4. Per contra, learned counsel for the respondents submits that there cannot be Bapi rights in the grant of mining lease. It is the Deputy Secretary, Mines who granted lease to the respondents and they were in possession over the disputed land but because of the dispute, sometimes the possession was given to the petitioners and sometimes, it was kept under the 4. receivership of the Mines Department. He has also drawn the attention of the Court towards the judgment dated 10th February, 2006 passed by this Court in D.B. Civil Special Appeal (W) No.916/2005, wherein, it has been observed that it is the Mining Department, which is a competent Authority to issue the licence to the mining quarry. I am failed to understand that how this judgment helps learned counsel for the respondents because in this Special Appeal, the order of the learned Single Judge dismissing the writ petition of the respondents was upheld and it was observed in the last para as follows: “Rule 64 of the Minor Mineral Concession Rules no doubt recognized acquisition of Bapi and propriety rights but at the same time provides that where there is bona fide dispute in respect of any mineral bearing land, quarry or mine, the Government shall not “recognize” such right unless declared by a competent court. That is what has been done by the Deputy Secretary (Mines) vide order dated 28.8.2004. The only protection which the appellants – as a matter fact, the parties – can claim is that till the dispute is not resolved by the competent civil court, the Department will not operate the quarry and status quo will be maintained so that – depending on the outcome of the suit – the party or parties are able to enjoy their professed 'Bapi' rights.” 5. In this judgment, it has also been observed that filing of the suit, writ petitions by the respondents rather shows that the respondents have been contesting the claim of the appellants 5. against the non petitioners in the present case in right earnestness. The civil suit No. 6/2003 is also pending before the Civil Judge (S.D.), Makrana and the order of status quo has been passed therein. 6. Learned counsel for the respondents has also drawn the attention of the Court towards one order of the Mining Department dated 24.1.2006, whereby, the possession has been given to the Mining Department. This document of the Mining Department has nothing to do with the present controversy. In the present case, the court has to see, as to whether, there is breach of piece or not, if, there is no breach of piece, the provisions of Section 145 Cr.P.C. cannot be invoked. Under proviso to Section 145(4) Cr.P.C. only a person who has been dispossessed within two months from the date of passing of the preliminary order can be given possession. Here in the present case, when the civil suit is pending, there is an order of status quo, it cannot be said that any breach of piece is existing since 1997, as we are running in the year 2008. 7. Consequently, with the above observations, this revision petition is allowed. The impugned order dated 19.1.2006 passed by the learned Addl. District and Sessions Judge, Parbatsar, Distt. Nagaur, giving directions to the Mining Department for 6. appointment of Receiver is set aside and it is ordered that in the light of the observations made by the Division Bench of this Court in D.B. Civil Special Appeal (w) No.916/2005, the dispute shall be resolved by the Competent Court and the parties shall maintain the status quo as ordered by the Civil Court in Suit No.6/2003 pending before the Civil Judge, Makrana. (DEO NARAYAN THANVI), J. ms rathore