Bhikari Charan Rath Vs. State of Orissa and anr. - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - i am satisfied that there is apprehension of serious breach of peace between the parties at any moment3, which may lead to serious bloodshed and loss of human lives.orderp.k. tripathy, j. 1. heard.2. this revision application has been filed by the 2nd party in criminal misc. case no. 72 of 1995 under section 145 cr.p.c. of the court of executive magistrate, kendrapara, challenging issue of the prohibitory order while passing the preliminary order under sub-section (i) of section 145 cr.p.c. the impugned order reads as hereunder :'perused the misc. petition filed by the 1st party and enquiry , report made thereon by the a.s.i., patkura p.s. dated 3.5.1995. also perused the xerox copy of the r.o.r. published on 7.10.1987 and heard the advocate on behalf of the 1st party. it appears that there is apprehension of breach of peace arising out of construction of pucca building over the proceeding land as scheduled below, which is situated within the local limits of court's jurisdiction.i am satisfied that there is apprehension of serious breach of peace between the parties at any moment3, which may lead to serious bloodshed and loss of human lives.i, therefore order for initiation of a proceeding under section 145, cr.p.c. restraining both the parties to construct any pucca building on the scheduled land until further orders. both parties are also directed to appear in my court on i 8.5.1995 in person or through advocate and to file written statement and produce original documents in their favour.given under my hand and seal of the court, this the 4thday of may 1995.sd....executive magistratekendrapara'3. learned counsel for the petitioner argues that in a proceeding under section 145. cr.p.c, the magistrate is not empowered to issue a prohibitory order restraining the parties not to proceed with any construction, which in essence is an order undersection 144. the 1st parties/ppposite parties has not appeared and contested the case. learned additional standing counsel appearing for opp. party no. 1 state of orissa concedes ; to the correctness of the position of law in the aforesaid manner. however, he states that when a proceeding under section 145. cr.p.c. is meant to prevent apprehension of breach of peace, in appropriate cases, to avoid break of heads and/or clash between the parties, magistrate may pass appropriate order either for appointment of receiver or attachment to the subject matter of dispute. learned counsel for the petitioner also does not dispute to the power and jurisdiction of the magistrate to act in the aforesaid manner in appropriate cases.4. therefore, keeping in view the aforesaid submission and the position of law, this court finds that the order, passed by learned executive magistrate 'restraining both the parties to construct any pucca building on the scheduled land until further order' being not an order in confirmity with the provision in section 145, cr.p.c, that stands vacated. however, upon his satisfaction about existence of sufficient cause, on any of the grounds as provided in sub-section (1) of section 146, cr.p.c, learned executive magistrate may pass appropriate order for attachment of the subject-matter of dispute and if necessary he can pass appropriate order under sub-section (2) of section 146, cr.p.c. for looking after the property or to appoint a receiver. at present, when the proceeding under section 145, cr.p.c. is pending at the stage of appearance of the 2nd party therefore, the only ground available is that of emergency, as provided in sub-section (1) of section 146. if such emergency shall be found existing, learned executive magistrate may invoke the power to pass appropriate order. in that respect, learned magistrate shall pass appropriate order after affording reasonable opportunity of hearing to both the parties. if required, learned magistrate may allow the parties to file affidavits in support and against the motion of attachment. if, he shall think it necessary, may call for a report from the concerned officer-in-charge of the police station regarding existence of emergency. the said matter be attended to expeditiously and if necessary by granting short adjournment apart from that in case of extreme urgency, learned magistrate may pass appropriate interim orders which may be continued or discontinued after hearing the parties in the aforesaid manner.5. the above order shall not be treated as a direction to pass an order of attachment. the learned magistrate shall exercise his jurisdiction and discretion only in the case of existence of appropriate situation.6. it appears that though the proceeding under section 145, cr.p.c. is of the year 1995 the 2nd party/petitioner has not yet appeared in the proceeding and has not yet filed his written statement, if any. since the petitioner has knowledge and information about pendency of the said proceeding and keeping in view the old ness of the proceeding this court observes that no further notice be issued to him and the 2nd party petitioner shall enter appearance in the court below within ten days hence and shall file his written statement, if any, within one month from the date of receipt of the l.c.r. by the court below.7 .the criminal misc. case is allowed accordingly. send back the l.c.r. immediately

Judgment:
ORDER

P.K. Tripathy, J.

1. Heard.

2. This revision application has been filed by the 2nd party in Criminal Misc. Case No. 72 of 1995 under Section 145 Cr.P.C. of the Court of Executive Magistrate, Kendrapara, challenging issue of the prohibitory order while passing the preliminary order under Sub-Section (I) of Section 145 Cr.P.C. The impugned order reads as hereunder :

'Perused the Misc. petition filed by the 1st party and enquiry , report made thereon by the A.S.I., Patkura P.S. dated 3.5.1995. Also perused the xerox copy of the R.O.R. published on 7.10.1987 and heard the Advocate on behalf of the 1st party. It appears that there is apprehension of breach of peace arising out of construction of pucca building over the proceeding land as scheduled below, which is situated within the local limits of Court's jurisdiction.

I am satisfied that there is apprehension of serious breach of peace between the parties at any moment3, which may lead to serious bloodshed and loss of human lives.

I, therefore order for initiation of a proceeding under Section 145, Cr.P.C. restraining both the parties to construct any pucca building on the scheduled land until further orders. Both parties are also directed to appear in my Court on I 8.5.1995 in person or through Advocate and to file written statement and produce original documents in their favour.

Given under my hand and seal of the Court, this the 4thday of May 1995.

Sd....

Executive Magistrate

Kendrapara'

3. Learned counsel for the petitioner argues that in a proceeding under Section 145. Cr.P.C, the Magistrate is not empowered to issue a prohibitory order restraining the parties not to proceed with any construction, which in essence is an order underSection 144. The 1st parties/ppposite parties has not appeared and contested the case. Learned Additional Standing Counsel appearing for opp. party No. 1 State of Orissa concedes ; to the correctness of the position of law in the aforesaid manner. However, he states that when a proceeding under Section 145. Cr.P.C. is meant to prevent apprehension of breach of peace, in appropriate cases, to avoid break of heads and/or clash between the parties, Magistrate may pass appropriate order either for appointment of receiver or attachment to the subject matter of dispute. Learned counsel for the petitioner also does not dispute to the power and jurisdiction of the Magistrate to act in the aforesaid manner in appropriate cases.

4. Therefore, keeping in view the aforesaid submission and the position of law, this Court finds that the order, passed by learned Executive Magistrate 'restraining both the parties to construct any pucca building on the scheduled land until further order' being not an order in confirmity with the provision in Section 145, Cr.P.C, that stands vacated. However, upon his satisfaction about existence of sufficient cause, on any of the grounds as provided in Sub-Section (1) of Section 146, Cr.P.C, learned Executive Magistrate may pass appropriate order for attachment of the subject-matter of dispute and if necessary he can pass appropriate order under Sub-Section (2) of Section 146, Cr.P.C. for looking after the property or to appoint a receiver. At present, when the proceeding under Section 145, Cr.P.C. is pending at the stage of appearance of the 2nd party therefore, the only ground available is that of emergency, as provided in Sub-Section (1) of Section 146. If such emergency shall be found existing, learned Executive Magistrate may invoke the power to pass appropriate order. In that respect, learned Magistrate shall pass appropriate order after affording reasonable opportunity of hearing to both the parties. If required, learned Magistrate may allow the parties to file affidavits in support and against the motion of attachment. If, he shall think it necessary, may call for a report from the concerned Officer-in-charge of the Police station regarding existence of emergency. The said matter be attended to expeditiously and if necessary by granting short adjournment Apart from that in case of extreme urgency, learned Magistrate may pass appropriate interim orders which may be continued or discontinued after hearing the parties in the aforesaid manner.

5. The above order shall not be treated as a direction to pass an order of attachment. The learned Magistrate shall exercise his jurisdiction and discretion only in the case of existence of appropriate situation.

6. It appears that though the proceeding under Section 145, Cr.P.C. is of the year 1995 the 2nd party/petitioner has not yet appeared in the proceeding and has not yet filed his written statement, if any. Since the petitioner has knowledge and information about pendency of the said proceeding and keeping in view the old ness of the proceeding this Court observes that no further notice be issued to him and the 2nd party petitioner shall enter appearance in the Court below within ten days hence and shall file his written statement, if any, within one month from the date of receipt of the L.C.R. by the Court below.

7 .The criminal misc. case is allowed accordingly. Send back the L.C.R. immediately