SAHJAMAL v. SAJAHAN ALI & Ors.

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA Date : 05-09-2022 ORDER Heard Mr. H. Das, learned counsel for the petitioner and also heard Mr. Bhaskar Sarma, learned Addl. P.P. for the State respondent no. 5.

2. By filing this criminal petition under section 482 of the Cr.P.C., the petitioner has prayed for (i) quashing the impugned revisional judgment and order dated 02.08.2022, passed by the learned Sessions Judge, Goalpara in Crl. Revision No. 10.2020, and (ii) for declaring the order dated 19.09.2020, passed by the learned Executive Magistrate, Goalpara in the proceedings of Misc. Case No. 142/2019 under section 107/145 Cr.P.C. as legal, valid and justified.

3. In brief, the case of the petitioner is as follows:- a. In this criminal petition, the petitioner has projected that along with his brother, he had jointly purchased a plot of land measuring 3 bigha, covered by dag no. 325 of patta No. 116 of Village- Bhatiapara under Matia Circle in the district of Goalpara vide sale deed bearing registered deed no. 23 dated 19.01.2017. b. It is projected that after revenue partition proceeding, a new dag Page No.# 3/8 was created in respect of the said 3 bigha plot of land, which was recorded in their names in the draft chitha as land covered by dag no. 478 of miyadi patta no. 192. c. The further case of the petitioner is that he had lodged an FIR, which was registered as Mornai P.S. Case No. 49/2019, dated

14.05.2019, under section 4/5 of the Assam Land Grabbing (Prohibition) Act, 2010. However, the text of the FIR is withheld by the petitioner and no reason has been shown why the said FIR had been withheld in this petition. d. It is further projected that on the basis of communication received from the O/c., Matia P.S., and report of the Lot Mandal of Matia Revenue Circle, the Circle Officer, Matia Revenue Circle, vide order dated 11.09.2019, detailed 6 (six) Revenue staff to demarcate land measuring 3 bigha, covered by dag no. 478 of miyadi patta no. 192 and to hand over the said land to the actual owners. e. The petitioner had then instituted a proceeding under sections 107/145 Cr.P.C. against the respondent nos. 1 to 4, which was registered as Misc. Case No. 142/2019. The learned Executive Magistrate, Goalpara, vide order dated 19.09.2020, held that the petitioner was possessing the 3 bigha, covered by dag no. 478 of miyadi patta no. 192, out of which the respondent nos. 1 to 4 were occupying 3 katha land. Accordingly, it was ordered that the Circle Officer, Matia Revenue Circle will take necessary action for demarcating the said 3 bigha, covered by dag no. 478 of miyadi patta no. 192 and hand over possession to the petitioner by removing any illegal and unlawful occupation over the land. It is further projected that the Circle Page No.# 4/8 Officer, Matia Revenue Circle vide letter dated 11.11.2020, had reported to the Executive Magistrate that his order dated 19.09.2020 in Misc. Case No. 142/2019 was executed on 28.10.2020. f. It may be mentioned that the petitioner has withheld the notice issued to the respondent nos. 1 to 4 to appear in the proceeding of Misc. Case No. 142/2019, which is of great relevance in this case. g. The respondent nos. 1 to 4 had assailed the order dated 19.09.2020 by filing a criminal revision petition before the learned Sessions Judge, Goalpara. On the ground that from the notice issued to the respondent nos. 1 to 4, it appeared that the Misc. Case No. 142/2019 was registered under section 107 Cr.P.C., and that the impugned order was beyond the scope of section 107 Cr.P.C., no further effect be given to the impugned order dated 19.09.2020 till the returnable date and that no further activities shall follow on the strength of the order dated

19.09.2020. h. Thereafter, by final order dated 02.08.2022, passed by the learned Sessions Judge, Goalpara in Crl. Revision No. 10/2020, it was held that without declaring possession of the petitioner in respect of the disputed land under sub-section (4) of section 145 Cr.P.C., had directed the removal of the respondent nos. 1 to 4 under sub-section (6) of section 145 Cr.P.C., that too when the subject matter of the dispute is pending before the Civil Court and accordingly, the impugned order dated 19.09.2020 was set aside.

4. The learned counsel for the petitioner has submitted that the impugned judgment and order dated 02.08.2022, passed by the learned Sessions Judge, Goalpara displays total non-application of judicial mind and that Page No.# 5/8 the finding was recorded on the basis of surmises and conjectures. It has been submitted that unless the impugned order is stayed, there is every possibility that the respondent nos. 1 to 4 would re-enter into the disputed land.

5. The learned Addl. P.P. has made his submissions in the matter.

6. It is seen that the petitioner has withheld two relevant documents from the Court, being the text of the FIR dated 14.05.2019 as well as copy of notice issued by the learned Executive Magistrate, Goalpara to the respondent nos. 1 to 4 in connection with Misc. Case No. 142/2019. Therefore, the presumption which can be inferred on the basis of section 114, Ill.(g) of the Evidence Act, 1872 is that the document, if produced, would be unfavourable to the petitioner, who has withheld it.

7. It is also observed that in the order dated 19.09.2020, which was impugned before the learned Sessions Judge, Goalpara, there is no mention if the respondent nos. 1 to 4 had appeared and participated in the hearing, and nature of objection, if any submitted by them. It is seen that the learned Executive Magistrate, Goalpara, had relied upon the police report to hold that the petitioner was in possession over the disputed land. It is also seen that no declaration was made by the learned Executive Magistrate, Goalpara as to which of the party was in possession of the disputed land at the date of the order made by him under sub-section (1) of section 145 Cr.P.C. In the said order dated 19.09.2020, it has not been mentioned as to whether the petitioner had been wrongfully dispossessed within two months next before the date on which the report of the police or other information was received by the Magistrate.

8. Therefore, the Court is unable to prima facie find any legal Page No.# 6/8 infirmity or illegality in the impugned order dated 02.08.2022, even to issue notice upon the respondents.

9. The Court finds that the learned Sessions Judge, Goalpara is justified in holding that without declaring possession of the petitioner in respect of the disputed land under sub-section (4) of section 145 Cr.P.C., the learned Executive Magistrate, Goalpara had directed the removal of the respondent nos. 1 to 4 from the disputed land under sub-section (6) of section 145 Cr.P.C. Moreover, from the documents appended to this petition, it is seen that one Nurul Islam had instituted a suit, which is registered as T.S. No. 101/2021, which the petitioner has pleaded to be pending before the Court of Munsiff, Goalpara, where the petitioner is arrayed as the defendant no.1, whereby he has claimed right, title, interest and recovery of possession over 2 katha 12 lechas of land covered by erstwhile dag no. 325 of patta no. 116, claiming that order of partition be also set aside. The said suit is stated to be pending before the Court of Munsiff. Therefore, the learned Sessions Judge is not shown to have erred in holding that the impugned order was passed when the subject matter of the dispute is pending before the Civil Court.

10. Thus, the learned counsel for the petitioner has failed to demonstrate that the impugned order dated 19.09.2020, passed by the learned Sessions Judge, Goalpara in Crl. Revision No. 10/2020 is vitiated by any error apparent on the face of the record, or that the finding was absurd or in any way hit by the Wednesbury’s principle of unreasonableness. The learned counsel for the petitioner has also not been able to show that the learned Sessions Judge, Goalpara had committed any error even while appreciating facts. The learned counsel for the petitioner has not been able to demonstrate that the learned Page No.# 7/8 Executive Magistrate, Goalpara had decided which of the parties was in possession of the disputed land as required under sub-section (4) of section 145 Cr.P.C., or as to whether the petitioner was illegally dispossessed within next two months prior to the date of the police report. Therefore, it could not be demonstrated that the learned Sessions Judge, Goalpara had committed any legal infirmity by holding that the direction for removal of the respondent nos. 1 to 4 herein was not sustainable. Rather, the order dated 19.09.2020, passed by the learned Executive Magistrate, Goalpara, in Misc. Case No. 142/2019 is not found to be sustainable on facts and in law and was rightly interfered with by the learned Sessions Judge, Goalpara. Therefore, this petition fails on all counts as morefully discussed herein before.

11. It is further observed that the petitioner has first approached the Mornai Police Station and lodged an FIR on 14.05.2019, which was registered as Mornai P.S. Case No. 49/2019 under section 4/5 of the Assam Land Grabbing (Prohibition) Act, 2010. Thereafter, the petitioner has approached the Court of learned Executive Magistrate, Goalpara by filing petition under sections 107/145 Cr.P.C. sometime in the month of August, 2019, wherein he had suppressed about lodging of the aforesaid FIR dated 14.05.2019 before Mornai P.S. Thus, it is evident that the petitioner has not approached the Court of Executive Magistrate, Goalpara with clean hands, rather his petition is tainted with suppression of material facts.

12. Accordingly, in light of the discussions above, this criminal petition filed under section 482 Cr.P.C. is dismissed without issuance of any notice on the respondents.

13. Before parting with the records, it is disturbing to note that the Page No.# 8/8 police personnel of Mornai P.S. are ignorant of the judgment and order dated

17.08.2017, passed by the Division Bench of this Court in the case of XXX v. State of Assam, Crl. Ref. No. 1 of 2017, reported in (2018) 2 GLR 313: 2017 (5) GLT 854, wherein it has been held, inter alia, that under section 7 of the 2010 Act, the Special Tribunal has the jurisdiction to enquire into any alleged act of land grabbing and trial of the cases and while doing so, it has the power to determine ownership, title or possession of land grabbed. Therefore, ignorant about the said judgment, the Officer-In-Charge of Mornai P.S. has registered Mornai P.S. Case No. 49/2019 on 14.05.2019 under section 4/5 of the Assam Land Grabbing (Prohibition) Act, 2010. Hence, the learned Addl. P.P. shall transmit a downloaded copy of this order to the Director General of Police, Assam so as to enable the said authority to circulate the herein before referred judgment and order dated 17.08.2017, passed by the Division Bench of this Court in the case of XXX v. State of Assam, Crl. Ref. No. 1 of 2017, reported in (2018) 2 GLR 313: 2017 (5) GLT 854, to all the police stations in the State.

14. The Registry shall transmit a copy of this order to the Court of the learned Sessions Judge, Goalpara to make it a part of the record of Crl. Revision No. 10/2020. JUDGE Comparing Assistant