Gulabchand Vs. State of U.P. and anr. - Court Judgment

Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under.....orderumeshwar pandey, j.1. revisionist gulab chandra has approached the court under section 397 read with section 401 of the code of criminal procedure (for short the 'code') assailing the order dated 13-2-1996 passed by the ii additional sessions judge, aligarh.2. the revisionist moved the sub divisional magistrate concerned through application dated 11-4-1994 for initiating proceedings under section 145 of the code in respect of a building raised on a peace of land stating that there was likelihood of breach of peace on the dispute of possession over the building between him and the opposite party smt. ashok kumari. a report from the police, on the said application was called by the magistrate and the police in its report dated 15-6-1994 gave out that there were four rooms in the.....

Judgment:
ORDER

Umeshwar Pandey, J.

1. Revisionist Gulab Chandra has approached the Court under Section 397 read with Section 401 of the Code of Criminal Procedure (for short the 'Code') assailing the order dated 13-2-1996 passed by the II Additional Sessions Judge, Aligarh.

2. The revisionist moved the Sub Divisional Magistrate concerned through application dated 11-4-1994 for initiating proceedings under Section 145 of the Code in respect of a building raised on a peace of land stating that there was likelihood of breach of peace on the dispute of possession over the building between him and the opposite party Smt. Ashok Kumari. A report from the police, on the said application was called by the Magistrate and the police in its report dated 15-6-1994 gave out that there were four rooms in the building under the residential occupation of opposite party Smt. Ashok Kumari. Gulab Chand claims to have purchased it from Satya Dev father of Smt. Ashok Kumari on 26-7-1993. On this report, the Magistrate passed the preliminary order under Section 145(1) of the Code on 26-7-1993 and Smt. Ashok Kumari was called upon to submit her written statement which was actually submitted on 10-10-1994 stating that she has been all through in peaceful possession over the said building and the proceedings may be dropped. The revisionist Gulab Chand prior to that on 16-8-1994 had also submitted an application for passing an order of attachment under Section 146(1) of the Code stating that Smt. Ashok Kumari with the help of her father was trying to oust him from the building. Against this application also objections were submitted from the side of opposite party Smt, Ashok Kumari. The learned Magistrate however, vide order dated 22-7-1995 passed the order for attachment of the building and directed the police to give it in Supurdgi of a third person.

3. The opposite party Smt. Ashok Kumari being aggrieved with the aforesaid order of attachment dated 22-7-1995, preferred criminal revision before the learned Sessions Judge, which was ultimately decided by the II Additional Sessions Judge, by the impugned Judgment. The lower revisional Court holding that an order of attachment under Section 146(1) of the Code was wholly uncalled for under the facts and circumstances of the case, allowed the revision and the said order under Section 146(1) of the Code dated 22-7-1995 was set aside. Smt. Ashok Kumari was permitted to continue her occupation of the disputed residential house till the proceedings were finally decided between the parties.

4. I have heard learned counsel for the parties and perused the material on record.

5. It is contended by the learned counsel for the revisionist that the lower revisional Court has erred in entertaining a revision under Section 397 of the Code against an order passed under Section 146(1) of the Code as it is an interlocutory order within the meaning of Section 397(2) of the Code. A revision against such an order is barred.

6. Learned counsel for the revisionist has cited the case of Kalloo v. State of U. P., reported in 1997 JIC 832 : (1997 All LJ 2165) : (1963 Cri LJ 648). In para 17 of the Judgment, the learned Single Judge has held as following :

'If the revision itself against an order under Section 146(1) Cr.P.C. was not maintainable, the illegality of that order could not be gone into by the revisional Court and partly allowing of such revision and partly dismissing it again amounts to an action without jurisdiction and also an illegal action.'

7. In reply to the aforesaid submission of the learned counsel the citation of case law of Ranbir Singh v. Dalbir Singh reported in (2002) 1 JIC 944 : AIR 2002 SC 1500 : (2002 Crl LJ 2017), Gopal v. State of U.P., reported in (2001) 43 ACC 496 and Ram Lachhan v. State of U.P. reported in (2000) 2 JIC 859 : 2000 All LJ 1003 : (2000 Cri LJ 2770), have been referred before me.

8. In the case of Ranbir Singh (supra), the Supreme Court in a case of like nature where the revisional orders of the High Court against an order passed by Sub Divisional Magistrate under Sections 145(1) and 146(1) of the Code had been challenged in an S.L.P. held that quashing of preliminary order under Section 145(1) of the Code and order for attachment of property under Section 146(1) of the Code by the High Court under the facts and circumstances of the case could not be challenged and the Apex Court maintained the order passed by the High Court of Delhi. Though the Apex Court in Paragraph 9 has observed and held as following :--

'On perusal of the relevant papers on the record and on consideration of the contention raised, by learned counsel for the parties, we are of the view that in the context of the facts of this case, the order passed by the High Court setting aside the order dated 11-7-2000 passed under Section 145(1) as well as the order dated 14-11-2000 passed under Section 146(1) Cr.P.C. is unsustainable.'

'In these circumstances we are of the view that while maintaining the order of the High Court, quashing the preliminary order passed by the Sub-Divisional Magistrate under Section 145(1) and the order of attachment of the property under Section 146(1) Cr.P.C. leave should be granted to the parties to approach the Civil Court for appropriate interim order and the Civil Court should deal with the application for interim order without being influenced by the observations made/findings recorded by the High Court in the impugned Judgment. It is ordered accordingly.'

9. In the case of Ram Lachhan (supra), the learned Single Judge of this Court has specifically observed that an order passed by the Magistrate under Section 146(1) of the Code is not an interlocutory order, but it is an intermediary order and a revision against such order is not barred under Section 397(2) of the Code. In Para 5 of the Judgment, the learned Single Judge has observed as follows :--

'It has been contended before me that the revision was not maintainable before the learned Sessions Judge as the order passed by the learned Magistrate is an interlocutory order. With due regard, I do not agree with this contention of the learned counsel for the appellant. It was an intermediary order, in my opinion, it is not an interlocutory order. By this order the attachment of the property Could easily have been effected to and the respondent would have been divested of his possession. It is common knowledge that such proceedings are generally initiated by persons, who are desirous of dispossessing someone out of his lawful possession.'

10. In the case of Gopal (supra) also the subject matter of challenge before this Court was an order passed by the Special Judge in a revision where the orders passed under Sections 146(1) and 145(1) of the Code could not be characterized as the interlocutory orders.

11. There are certain other citations of the Hon'ble Supreme Court and other High Courts which need to be referred.

12. A Division Bench Judgment of Madhya Pradesh High Court given in the case of Keshavprasad Bhatt v. Ramesh-chandra, reported in 1990 Cri LJ 1541 overruled the two decisions of the Single Judge of the same Court given in the cases of Mohammad Rafi v. Mohammad Azizur Rehman, reported in 1983 MPWN 171 and Ratan Lal v. Vijay Singh reported in 1976 MPLJ (SN) 14 and held as following:--

A learned Single Judge of the Bombay High Court in Hasmukh v. Sheila, 1981 Cri LJ 958, had held that order passed under Section 146(1) directing attachment and sealing of a flat was not an 'interlocutory order' and the bar of Section 397(2) was not attracted.

16. For all the foregoing reasons we are of the view that the holding in Gajadhar, (1978 Cri LR (Madh Pra) 324) (supra) that order passed under Section 146(1), Cr.P.C. was not revisable under Section 397(1) Cr.P.C. is not sustainable. That is over ruled. We answer, accordingly, in the negative, the question referred for the opinion of this Bench. In our view an order passed under Section 146(1), Cr.P.C. is not an 'interlocutory order' within the meaning of Section 397(2) Cr.P.C.

13. In the case of Smt. Prameshwari Devi v. The State reported in AIR 1977 SC 103 : (1977 Cri LJ 245), the Apex Court while addressing on the scope of the bar of revision as contemplated under Section 397(2) of the Code, has explained the scope of an 'interlocutory order' and has held that an order passed in a proceeding adversely affecting a party could not be said to be an interlocutory order so far as it operates against that party and the bar of Section 397(2) of the Code could not be raised. In the case of Madhu Limaye v. State of Maharashtra reported in (1978) (1) SCR page 749 : (1978 Cri LJ 165), the Hon'ble Apex Court while dealing on the scope of an order being interlocutory or not has observed as following:--

'In such a situation it appears to us that the real intention of the legislature was not to equate the expression 'interlocutory order' as invariably being converse of the words 'final order'. These may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's (supra), but, yet it may not be an interlocutory order -- pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterize them as merely interlocutory orders within the meaning of Section 397(2).. ... ....

Yet for the reasons already alluded to. we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).'

14. Following the aforesaid principles, the Apex Court has further held in the case of V.C. Shukla v. State, reported in AIR 1980 SC page 962 ; (1980 Cri LJ 390) that before a final order passed in a criminal proceeding there could be some orders affecting the interest of either of the party which may not be termed as pure and simple interlocutory orders. Thus, the Hon'ble Apex Court gave a new nomenclature being an 'intermediate order' which appears to have worked upon the learned Single Judge in the case of Ram Lachhan, 2000 All LJ 1003 : (2000 Cri LJ 277Q) (supra) to hold and characterize an order passed under Section 146(1) of the Code by the Magistrate to be an 'interlocutory order'. The concept of intermediate order' appears to have been borrowed by the learned Single Judge of Bombay High Court also in the case of Hasmukh J. Jhaveri v. Sheila Dadlani, reported in 1981 Cri LJ page 958, from the case of V. C. Shukla (supra) and it has been held that;

'Irrespective of the order bearing stamp of finality, there may be an intervening stage which can be called as 'intermediate stage' at which in turn may be called as 'intermediate order' which neither gives the finality to the proceeding nor is purely interim or temporary and as such is not an 'interlocutory order', but would fall in between and in certain cases such order can be said to be not interlocutory.'

15. With the aforesaid observation, the Bombay High Court held that an order passed under Section 146(1) of the Code is an order, which can be termed as 'intermediate order', and it cannot be termed as an interlocutory order as to attract the bar of Section 397(2) of the Code.

16. In the aforesaid view of the matter, the order of the Magistrate passed under Section 146(1) of the Code and challenged before the learned Sessions Judge in a revision under Section 397 of the Code thus, could not be termed as interlocutory order and the contention of the learned counsel for the revisionist that the impugned order of the learned Additional Sessions Judge could be termed as illegal, appears to have absolutely no force.

17. A perusal of the impugned Judgment of the Additional Sessions Judge makes, it clear that the revisionist Gulab Chand preferred his application before the Sub-Divisional Magistrate concerned about the urgency in the matter and initiations of the proceedings under Section 145 of the Code as back as on 11-4-1994. The order of attachment under Section 146 of the Code was passed on 22-7-1995 i.e. after a lapse of more than one year and three months. Keeping the aforesaid factor in mind when this order of attachment was challenged and the revision was heard by the lower revisional Court it was found that such an order passed by the Sub-Divisional Magistrate was bad in law as per the principles laid down by this Court in the case of Jawahar Lal v. Awadh Bihari, reported in 1990 Cri LJ page 2738.

18. In Para-5 of the Judgment of the aforesaid case, the learned Single Judge has held as follows :--

'5. The provisions of emergency attachment as envisaged under Section 146 Cr.P.C. may be invoked only in cases where the Magistrate records satisfaction that but for the attachment of the disputed property, the breach of peace is eminent. On the facts of the present case, it sounds too high to expect that in a proceeding under Section 145 Cr.P.C. which commenced on 11-3-88, the attachment should be directed now i.e. exactly about 2 years of the initiation of those proceedings. The materials existing before the Magistrate do not justify today, the directing of the attachment to proceed further. On the facts, existing materials may not be interpreted as now a case of emergency. Consequently, the impugned direction of the Magistrate as contained in his order dated 13-3-89 directing the attachment of the property has to be set aside. But this does not mean that the proceedings under Section 145 Cr.P.C. should not come to its logical end in accordance with law.'

19. Following the aforesaid principles, the learned Additional Sessions Judge appears to have rightly allowed the revision against the order dated 20/22-7-1995 passed by the Sub Divisional Magistrate concerned. The emergency provisions of Section 146 of the Code were definitely not worth invoking. There was absolutely no material available before the Magistrate on 20/22-7-1995 to record his satisfaction about the likelihood of breach of peace being eminent when a long period of 15 months had already elapsed in between the presentation of application for taking cognizance under Section 145 of the Code upto the date of passing of the order for attachment. The Magistrate had already taken cognizance in the matter as back as on 26-7-1994 when he passed an order under Section 145(1) of the Code after obtaining the police report in the matter. Then also there was no emergency about the passing of order for attachment under Section 146(1) of the Code. The material before the Magistrate actually did not justify directing attachment. As such keeping in view all these aspects of the matter the lower revisional Court appears to be fully justified while it entertained the revision and allowed it and consequently set aside the impugned order of attachment. Since, the order of attachment passed by the Magistrate was bad in law it cannot be said that such an order was an interlocutory order attracting bar as envisaged under Section 397(2) of the Code.

20. In the aforesaid facts and circumstances of the case, I do not find any Illegality in the Judgment and order passed by the lower revisional Court and the present revision appears to have no force.

21. The revision is hereby dismissed. The Sub-Divisional Magistrate concerned is however, directed to proceed in the matter ex-peditiously and decide it, if the same had not been concluded, within a period of two months from the date of presentation of a certified copy of this judgment.