Bishnoi, J.
1. This revision petition has been filed jointly by Brij Ratan Mohta and Bajrang Lal Lakhotia against the order dated 18.1.2002 passed by the Additional District Magistrate (City), Bikaner, whereby, it has been ordered that the property in dispute shall stand attached and shall remain in possession of the S.H.O. Police Station, Kot-Gate, Bikaner as a Receiver.
2. The facts leading to this revision, in brief, are that the respondent No. 3 Prakash Kumar Mohta s/o Shree Ratan Mohta on 14.12.2001 moved an application under Section 145, Cr.P.C. in the said court against the two petitioners and two more namely; Asu Ram and Gora Ram.
3. It was alleged in the application that the respondent No. 3 Prakash Kumar Mohta and his uncle Brij Ratan Mohta (petitioner) both reside at Kolkata and their ancestral 'Un-divided' property known as 'Mohta Palace1 is situate on Hospital Road, Bikaner as described in Para 2 of the application. According to Prakash Kumar Mohta, the said property belonged to his grand-father Radha Kishan Mohta, who had two sons namely; (Brij Ratan Mohta (petitioner No. 1) and Shree Ratan Mohta (father of Prakash Kumar Mohta). After the death of Radha Kishan Mohta, his said two sons became joint owners of the property and two rooms on the ground floor and a portion known as 'Aashram' on the first floor, were in possession of Shree Ratan Mohta who died on 5.2.2000 and thereafter the said rooms and 'Aashram' remained in possession of Prakash Kumar Mohta. It was further stated that on 13.12.2001, Prakash Kumar Mohta returned from Kolkata and went to 'Mohta Palace' along with Shree Kishan Sarda and Banwari Lal Bagadia. He was prevented from entering the building by the petitioner No. 2 Bajrang Lal Lakhotia. Bajrang Lal Lakhotia told them that he has instructions from the petitioner No. 1 Brij Ratan Mohta not to allow any body in the building and Bajrang Lal Lakhotia called Asu Ram, Gora Ram and two more persons, who were wielding lathies. Prakash Kumar Mohta retreated and lodged an F.I.R. No. 406/2001 under Section 341, 504, 506, 147 and 352 of the Indian Penal Code against Bajrang Lal Lakhotia and four unknown persons. It was further mentioned in the report that Prakash Kumar Mohta's locks were removed some 15 days prior to the incident and the rooms were locked by Bajrang Lal Lakhotia (petitioner No. 2) on behalf of the petitioner Brij Ratan Mohta. It was further mentioned that after lodging of the said FIR, Prakash Kumar Mohta, with the help of the police was able to put his own locks apart from the locks put up by Bajrang Lal Lakhotia (petitioner No. 2). A prayer was made to the effect that a declaration may be made to the effect that the disputed property belongs to Prakash Kumar Mohta (respondent No. 3) and the locks installed by Bajrang Lal Lakhotia may be ordered to be removed.
4. This report was forwarded by the Presiding Officer of the said court to the police station, Kot-Gate, Bikaner and the S.H.O. visited the place and prepared a 'Map' of the disputed property. He also recorded the statements of Prakash Kumar Mohta. Shree Kishan Sarda and Banwari Lal Bagadia and filed a complaint against Brij Ratan Mohta, Bajrang Lal Lakhotia, Asu Lal and Gora Ram in the court of Additional District Magistrate (City), Bikaner with a prayer that the property in dispute may be ordered to be attached under Section 146 of the Criminal Procedure Code. The court ordered to issue notice to the parties. Both the sides appeared and filed their respective claims in the said court.
5. The arguments were heard on 18.1.2002 and the impugned order was passed, against which, this revision petition has been filed by Brij Ratan Mohta and Bajrang Lal Lakhotia.
6. I have heard learned counsel for the two sides and the learned Public Prosecutor for the State and I find that the revision petition deserves to be allowed.
7. Some of the salient features in the case, which are not in dispute, are as follows:-
1. The disputed property known as 'Mohta Palace' is a double storey building having huge constructions and, in the western side of it, there is an open land attached to it, which measures 12,812 Sq. Yds.
2. The entire disputed property belonged to Radha Kishan Mohta, who was the father of Brij Ratan Mohta (petitioner No. 1) and grandfather of Prakash Kumar Mohta (respondent No. 3).
3. Shree Ratan Mohta s/o late Radha Kishan Mohta died on 5.2.2000 leaving behind four heirs namely; Sushila Devi Mohta (Widow), Arun Kumar Mohta (son), Prakash Kumar Mohta (son) and Manju Shree Singhi (daughter).
4. Brij Ratan Mohta and four aforesaid heirs of Shree Ratan Mohta jointly appointed G.D. Kothari as Sole Arbitrator to resolve the dispute and the partition of 'Undivided' property of the parties including the disputed property.
5. The said Arbitrator G.D. Kothari passed the Award on 7.5.2001, according to which, the entire constructed disputed property known as 'Mohta Palace' fell into the share of Brij Ratan Mohta.
6. In addition to the said constructed 'Mohta Palace' the adjoining open land in the western side measuring 3500 Sq. Yds. was also awarded to Brij Ratan Mohta and further west the land measuring 9,312 Sq. Yds. went to the share of the heirs of Shree Ratan Mohta.
7. The Award passed by G.D. Kothari on 7.5.2001 was not challenged and was accepted by all concerned and a joint letter dated 21.9.2001 signed by Brij Ratan Mohta, Sushila Devi Mohta, Arun Kumar Mohta, Prakash Kumar Mohta' and Manju Shree Singhi was sent to the sole Arbitrator G.D. Kothari confirming their acceptance of the Award dated 7.5.2001 and seeking the help of the Arbitrator in effecting the Award and to get all partition- deeds duly executed and registered for effectively vesting of the respective properties in the names of the persons who were entitled to the same as per the terms and conditions of the Award.
8. It appears that soon after the said letter dated 21.9.2001, complications started to crop up and the sailing did not remain smooth and the Arbitrator got tired of the pulls and pressures of the parties and washed his hands completely by writing a letter dated 13.12.2001 to all the five parties saying that he was no more available to conciliate between the parties and to further act in connection with the Award dated 7.5.2001.
8. As pointed out earlier, Prakash Kumar Mohta on 13.12.2001 lodged an F.I.R. No. 406/2001 under Section 147, 352, 504, 341 and 506 of the Indian Penal Code against the petitioner No. 2 Bajrang Lal Lakhotia and four unknown persons. On 15.12.2001, Brij Ratan Mohta lodged an FIR No. 408/2001 against Prakash Kumar Mohta, Shree Kishan Sarda and 7-8 unknown persons, whereby it was alleged that he received the information at Kolkata on 14.12.2001 about the incident from his 'Muneem' and care-taker Bajrang Lal Lakhotia to the effect that on 13.12.2001, Prakash Kumar Mohta and Shree Kishan Sarda with the help of 7-8 anti-social elements came and forcibly locked the certain rooms of 'Mohta Palace'. On this report, a case under Section 147, 148, 149, 323 and 448 of the Indian Penal Code was registered at police station, Kot-Gate, Bikaner. It is also not in dispute that the third F.I.R. dated 16.12.2001 was lodged by Shree Kishan Sarda against Brij Ratan Mohta, Bajrang Lal Lakhotia, Ramesh s/o Banwari Lal Lakhotia, Asu Ram, Mota Ram and five unknown persons for the offences under Section 147, 341, 448 and 323 of the Indian Penal Code. In this F.I.R. for the first time, it was disclosed that for the last 25 years, this Shree Kishan Sarda was in the employment of Shree Ratan Mohta and Prakash Kumar Mohta as 'Muneem' and was living in two rooms of 'Mohta Palace' and on 16.12.2001, at 7.00 AM, when he and five security personnel were sitting there five named and five unknown offenders came and threatened them with dire consequence, used filthy language, threw the articles out and wrongfully occupied the said two rooms after throwing them out. I find that this F.I.R. by Shree Kishan Sarda is completely false and result of some afterthought. Shree Kishan Sarda was ever in the employment of Prakash Kumar Mohta or his father was never alleged prior to 16.12.2001 nor there was any allegation to the effect that any portion of the building was in occupation of Shree Kishan Sarda. As a matter of fact, the allegations were to the effect that Shree Ratan Mohta and Prakash Kumar Mohta were residing in Kolkata and two rooms on the ground floor and the 'Aashram' in the first floor remained closed under lock and key. The allegations made in the F.I.R. dated 16.12.2001 were evidently unfounded and figment of imagination. As a matter of fact, there was no material on record to suggest that the building was in possession of Prakash Kumar Mohta on 13.12.2001 or soon before it. On the other hand, there was sufficient evidence to suggest that the whole building was in possession of Brij Ratan Mohta and his care-taker Bajrang Lal Lakhotia, used to reside in the building along with his family.
9. After hearing the learned counsel for the parties and learned Public Prosecutor for the State and perusal of the record of the lower court, I find that there was no justification in passing the impugned order, which was passed by the Additional District Magistrate (City), Bikaner on 18.1.2002. All the facts which have been narrated above, were brought to the notice of the learned Additional District Magistrate (City), Bikaner but he chose not to address himself in respect of any of the contentions raised on behalf of the petitioners and passed the order just on the alleged basis that there was tension and possibility of breach of peace. Needless to say, that in every case, when there is a dispute in respect of immovable property, an order for attachment cannot be issued just for the asking. The order for attachment of the property is passed in rarest of the rare cases and in the case in hand, there was no circumstance to justify the passing of the impugned order. As pointed out earlier, the dispute stood resolved on 7.5.2001 when the Award was passed, which was subsequently accepted by the parties by a joint letter dated 21.9.2001. Under Section 34(1) of the Arbitration and Conciliation Act, 1996, a party feeling aggrieved has to move an application for setting aside the Award but if no such application is made and the Award is not challenged, it assumes the status of a decree by a Civil Court. In the instant case, as pointed out earlier, the Award passed on 7.5.2001 was never challenged. On the other hand, all the parties concerned accepted the same. In these circumstances, the Additional District Magistrate (City), Bikaner had no authority to pass an order under Section 146 of the Criminal Procedure Code because such an order of attachment can be passed if rights of the parties were yet to be determined by a competent court. In the instant case, the rights stood determined by the Award dated 7.5.2001 which has got the sanctity of a decree by a Civil Court behind it. The relevant portion of Section 146 of the Criminal Procedure Code reads as under :-
Section 146. Power to attach subject of dispute and to appoint receiver:(1) If the Magistrate at any time after making the order under Sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.'
10. The finding of the S.H.O. Kot-Gate, bikaner to the effect that there was tension and possibility of breach of peace, which was accepted by the Additional District Magistrate (City), Bikaner and which became the sole basis of passing the impugned order, in my opinion, had no basis. From the record of the lower court, it is evident that the S.H.O. Kot-Gate, Bikaner proceeded in a slip shod manner with a closed mind and it appears that he did not even visit the disputed site. As pointed out earlier, the disputed building is a huge campus and it is not disputed that it has got some 35 rooms in all plus six garages but the inspection note allegedly prepared by the S.H.O. has shown only two rooms. He has not even measured the land nor examined anybody other than interested parties. In the statements of Prakash Kumar Mohta, Shree Kishan Sarda and Banwari Lal Bagaria who were named by Prakash Kumar Mohta in his application dated 14.12.2001, it is nowhere recorded that Brij Ratan Mohta, Bajrang Lal Lakhotia, Asu Ram and Gora Ram or any body on their behalf was present at the place of dispute. The conclusion to the effect that there was a serious possibility of breach of peace was, thus, totally baseless.
11. A conscious effort has been made by Prakash Kumar Mohta to not to disclose the correct story of the dispute and the application dated 14.12.2001 moved under Section 145, Cr.P.C. does not make any mention of the fact of appointment of the Arbitrator and the award passed by the Arbitrator. He has mentioned himself as a Manager of the whole property and has not disclosed the fact that his mother, brother and sister are also inheritors as heirs of Shree Ratan Mohta.
12. The proper course for Prakash Kumar Mohta was to proceed for execution of the Award dated 7.5.2001 but instead he chose to move a criminal court, which was uncalled for and as a matter of fact, was a clear-cut abuse of the process of law. The learned Executive Magistrate was wholly unjustified in passing the order of attachment and putting the property in possession of the S.H.O. Kot-Gate, Bikaner.
13. Consequently, the revision petition is allowed and the impugned order dated 18.1.2002 passed by the Additional District Magistrate (City), Bikaner is set aside.