Shrikant Prasad @ Chirkut Sah v. The State of Bihar

Patna High Court CR. WJC No.879 of 2011 (13) dt.20-03-2013 3 (for short “the code”) bearing Case No.623KM of 2008 was initiated with respect to the petitioners’ purchased and possessed land by the learned Sub. Divisional Magistrate, Pakridayal on an application filed by respondent no.5. On notice, the petitioners appeared in the matter and filed their show cause. Finding a brick built construction raised on the land and possessed by the petitioners as per the police report dated 20.12.2008 in the matter, the learned Magistrate dismissed the proceeding under section 144 of the Code by order dated 18.4.2009.

Learned counsel further submitted that prior to the petitioners’ purchase of the land, a proceeding under section 145 of the Code bearing Case No.339M of 2001 had been initiated for the same land by the petitioners’ vendors against the respondent no.5 wherein the possession of the land in question had been duly declared by the Sub Divisional Magistrate, Pakridayal vide order dated 23.2.2002 in favour of the petitioners’ vendors. However, the respondent no.5 preferred Cr. Revision No.543 of 2005 against the order declaring the possession of the petitioners’ vendors on the land in question. Learned counsel submitted that vide order dated 10.2.2009, the learned Additional Sessions Judge, FTC-4, Motihari, remanded the matter back to the original authority with a direction to have local inspection of the land conducted by the Sub Divisional Magistrate, Pakridayal and, Patna High Court CR. WJC No.879 of 2011 (13) dt.20-03-2013 4 thereafter, to decide the matter afresh. After remand, the respondent no.5 prayed for petitioners’ addition as the first party interveners in the proceeding under section 145 of the Code pending since before the petitioners’ purchase of the land. The prayer was allowed and the petitioners were made the first party in Case No.339 of 2001. On 9.6.2010, the learned Sub Divisional Magistrate, Pakridayal conducted a local inspection of the land in question and thereafter, by order dated 24.12.2010 declared the possession of respondent no.5 on the land in question.

Learned counsel for the petitioners submitted that the petitioners challenged the aforesaid order dated 24.12.2010 passed by learned Sub Divisional Magistrate, Pakridayal in Cr. Revision No.64 of 2011. The learned 1st Additional Sessions Judge, East Champaran, Motihari heard the revision application filed on behalf of the petitioners and dismissed the same by order dated 11.8.2011 after holding that the entire proceeding of Case No.339M of 2001 vitiated owing to non-recording of satisfaction about existence of the conditions necessitating initiation of a proceeding under section 145 of the Code. The revisional court while dismissing the revision application upheld the possession of respondent no.5 over the land in question. The aforesaid orders dated 24.12.2010 passed by the learned Sub Divisional Magistrate, Pakridayal and dated 11.8.2011 passed by the learned 1st Patna High Court CR. WJC No.879 of 2011 (13) dt.20-03-2013 5 Additional Sessions Judge, East Champaran, Motihari are under challenge in the present writ petition.

Learned counsel submitted that the order passed by the revisional court is bad for the reasons that when the court found the initiation of the proceeding to be bad, the revision application ought to have been allowed.

Learned counsel further submitted that a proceeding under section 145 of the Code is initiated as an emergent measure, if there is apprehension of breach of peace relating to immovable property between the parties. However, in the present case it would appear that the proceeding was initiated in 2001 and the final order was passed Sub Divisional Magistrate, Pakridayal on 24.12.2010.

Per contra, learned counsel for respondent no.5 submitted that there is no error in the impugned orders passed by the learned Sub Divisional Magistrate, Pakridayal and the learned Additional Sessions Judge-1, East Champaran, Motihari. The possession of respondent no.5 was declared in view of the evidence led in the court and local inspection conducted by the Sub Divisional Magistrate, Pakridayal. Learned counsel for the State has also adopted the arguments advanced on behalf of the learned counsel appearing for respondent no.5.

Having heard the rival submissions made on Patna High Court CR. WJC No.879 of 2011 (13) dt.20-03-2013 6 behalf of the parties, I am of the view that the writ petition must succeed. It is essential for the assumption of jurisdiction by the Magistrate under section 145 of the Code that he should be satisfied either from the police report or from the other information which would include an application by the party dispossessed that there is likelihood of breach of peace. The mere fact that there is dispute concerning land is clearly not sufficient by itself to give him jurisdiction. An order under this section must be a speaking order. The failure to indicate ground that there is likelihood of breach of peace vitiates the order. Where the order is vitiated, the Magistrate fails to get the jurisdiction to hold an enquiry or pass any order under this section. The defects in the preliminary order like failure to set out the grounds of his satisfaction regarding likelihood of breach of peace relating to immovable property would make the subsequent proceeding without jurisdiction and erroneous in law.

4. In the result, the instant revision is dis- allowed.”

I am of the considered opinion that once the revsional court had found the entire proceeding to be vitiated it ought to have allowed the revision application instead of dismissing the same.

For the reasons recorded, hereinabove, I allow this application and set aside the impugned order dated 11th August, 2011 passed in Cr. Revision No.64/9 of 2011/2011 and the order dated 24.12.2010 passed in Case No. 339M of 2001. Md.S./- (Ashwani Kumar Singh, J)