Mahesh Sampat Pawar v. Balasaheb Narsoba Deokate & another
Case Details
- 1 - criwp1334.21.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1335 OF 2021 Mahesh Sampat Pawar Petitioner Versus Balasaheb Narsoba Deokate & another Respondents Mr. S. S. Deshmukh, Advocate for the petitioner. Mr. Rajendra S. Deshmukh, Senior Counsel instructed by Mr. Y. A. Namde and Mr. D. R. Deshmukh, Advocates for respondent No. 1. Mr. V. S. Badakh, APP for the State. WITH CRIMINAL WRIT PETITION NO. 1334 OF 2021 Mahesh Sampat Pawar Petitioner Versus Jaya Dattatraya Deokate & another Respondents
Legal Reasoning
pass interim order by recording prima facie fnding in respect of the - 8 - criwp1334.21.odt dispute in question. So far as proceedings under Money Lending Act is concerned, as refected from Section 15 of the Act, limited provisions of Code of Civil Procedure are applicable to the said proceedings. Suffce it to say that it may not be within the jurisdiction of the said authority to record any prima facie fnding and to pass interim order. In such circumstances, the dispute between the parties is not possible to be adjudicated at the interim stage by making prima facie observations. In considered view of this Court, the submission made by learned Senior Counsel on behalf of respondent No. 1 that on account of pendency of proceedings under Money Lending Act, the proceedings under Section 145 of Code of Criminal Procedure cannot be continued, holds no water. 8. This Court however fnds substance in the contention raised by learned Senior Counsel that the order passed by the Tahsildar cannot be permitted to hold feld in perpetuity. This aspect has also been dealt with by the Hon’ble Apex Court in Ramjanmabhoomi case. In paragraphs No. 295 and 298 of the said judgment, discussion to that effect is found. From the same, it is clear that there is no right vested in the Executive Magistrate in order to decide right, title and interest of the parties including the issue of - 9 - criwp1334.21.odt possession. Section 145 of Code of Criminal Procedure clearly demonstrates that even the fnding of possession is irrespective of the claim of the parties and on the basis of material available on record, the same has to be decided. Thus, the order passed under the said provision has life till the decision of dispute between the parties by the competent Court/authority. In the instant case, the provisions of Money Lending Act clearly cover the dispute between the parties including the dispute with regard to the declaration of the validity of the instrument i.e. sale-deed. In such circumstances, the order passed under Section 145 of Code of Criminal Procedure can only survive till passing of order by authority under Money Lending Act in this case. 9. With above clarifcation, the petitions stand allowed. Impugned orders passed by learned Sessions Judge, Osmanabad stand set aside. The orders of Executive Magistrate stand restored, which would hold feld till decision of proceedings under Money Lending Act. dyb ( R. M. JOSHI) Judge
Arguments
Mr. S. S. Deshmukh, Advocate for the petitioner. Mr. Rajendra S. Deshmukh, Senior Counsel instructed by Mr. Y. A. Namde and Mr. D. R. Deshmukh, Advocates for respondent No. 1. Mr. V. S. Badakh, APP for the State. PER COURT : CORAM : R. M. JOSHI, J. DATE : 17th OCTOBER, 2023. 1. These petitions take exception to the order dated 29th October, 2021, passed by learned Sessions Judge, Osmanabad in Criminal Revision Applications No. 16/2021 and 17/2021. - 2 - criwp1334.21.odt 2. The facts which led to fling of the present petitions can be narrated in nutshell as under :- Petitioner in both the petitions is an agriculturist and owner of land bearing Survey No. 453/2023 and 455/2023 admeasuring 1 H and 72 R situated at Osmanabad. According to the petitioner, respondent No. 1 and her family are engaged in the money lending business and there are as many as 49 sale-deeds registered in favour of them. Petitioner claims to have initiated the proceedings under Maharashtra Money Lending (Regulation) Act, 2014, (for short “Money Lending Act”) against the respondents as he claims himself to be a victim of the modus operandi of respondents. It is his further contention that the registered sale-deed in respect of the above properties executed in favour of respondent No. 1 is not actual sale but it is a money lending transaction. He also claims to be in possession of these lands which according to him is the only source of his livelihood. It is further alleged that respondent No. 1 started threatening the petitioner to dispossess him and therefore petitioner lodged complaint with concerned police station. On the basis of apprehension of likelihood of commission of breach of public peace, the Tahsildar initiated proceedings under Section 145 of the Code of - 3 - criwp1334.21.odt Criminal Procedure and passed interim order holding that petitioner is in possession of the agricultural land and respondent No. 1 was directed not to obstruct in the possession of the petitioner. Respondent No. 1 being aggrieved by the said order preferred above referred criminal revision applications under Section 397 of Code of Criminal Procedure. The learned Sessions Judge, Osmanabad, set aside the orders passed by the Tahsildar. Being aggrieved by the said order, these petitions. 3. Learned counsel for the petitioner submits that Tahsildar/Executive Magistrate has rightly exercised powers under Section 145 of Code of Criminal Procedure holding that petitioner is in possession of the subject lands and respondent No. 1 was directed not to interfere therein. It is his further submission that the learned Sessions Judge has exceeded the jurisdiction under Section 397 of the Code of Criminal Procedure and recorded fnding of fact though there was no perversity in the same as recorded by the Executive Magistrate. It is his submission that the fnding recorded by the Revisional Court that there is no material to hold that there is likelihood of breach of public peace is contrary to the material placed before the Executive Magistrate. It is his submission that initiation of - 4 - criwp1334.21.odt proceedings under Section 18 of Money Lending Act is suffcient for seeking declaration of the instrument as invalid and no suit is required to be fled. By referring to the judgment of Hon’ble Apex Court in Ramjanmabhoomi case, it is submitted that to meet the urgent situation, Section 145 of Code of Criminal Procedure has been enacted. It is his submission that any fnding recorded under the said provision does not affect the merit of the case or the claim of rival parties. By referring to the same judgment, it is sought to be argued that though the proceedings under Section 145 of Code of Criminal Procedure are not expected to be continued in case of fling of the civil suit, however, as the provisions of Order XXXIX Rules 1 and 2 have no application to the said Act, the pendency of proceeding under this Act would not bar the said remedy. 4. Learned Senior Counsel for respondent No. 1 supported the impugned orders contending that it is within the jurisdiction of the Revisional Court to set aside the perverse fndings. It is submitted that there is no cognizable offence registered against respondent No. 1 or petitioner in order to hold that there is likelihood of commission of breach of peace on account of the dispute between the parties. By relying upon the judgment in the case of - 5 - criwp1334.21.odt Ramjanmabhoomi, it is sought to be argued that once the proceedings under Money Lending Act are fled, it is not open for the Executive Magistrate to continue with the said proceedings. Without prejudice to these submissions, it is contended that the orders passed by the Executive Magistrate by way of interim measures cannot be allowed to remain in force indefnitely and that the said orders are coterminus with the proceedings fled by the petitioner. 5. Section 145 of Code of Criminal Procedure undoubtedly vests powers with the Executive Magistrate to hold as to who is in possession of the disputed land irrespective of the claim of rival parties. Any fnding recorded by such authority does not affect the claim, right, title and interest of the parties in respect of the same in any manner. As far as present case is concerned, order passed by the Executive Magistrate clearly shows that there are disputes between the parties in respect of the agricultural lands in question and that non- cognizable offences are registered against each other. Apart from this, it is specifcally observed that respondent No. 1 has sought police protection for the purpose of harvesting of the crop standing in the agricultural feld. This, according to the Executive Magistrate, indicates possibility of commission of breach of peace. - 6 - criwp1334.21.odt Having regard to the facts of the case, the said observations are not perverse. 6. Apart from this, on the basis of material placed on record, it is held that the petitioner is in possession of the agricultural land and respondent No. 1 is rightly restrained from causing interference therein. In these set of facts, it was not open for the learned Sessions Judge to cause interference in the said order in exercise of powers under Section 397 of Code of Criminal Procedure. Perusal of the order passed by the Revisional Court indicates that a fnding is recorded to the effect that the dispute between the parties is civil in nature and that the petitioners herein have obtained orders from the Executive Magistrate with the help of police machinery. These observations are not in consonance with the material placed on record. There is nothing on record to indicate that the report submitted by the police is not depicting the true facts. Pertinently, the learned Sessions Judge has failed to take into consideration application moved by respondent No. 1 herein for seeking police protection for harvesting of crop. This coupled with the complaint lodged by the parties against each other clearly indicate that prima facie it is a case where there is likelihood to causing of breach of - 7 - criwp1334.21.odt peace and public tranquility. Section 145 of Code of Criminal Procedure clearly indicates that even likelihood of causing breach of peace is suffcient ground for exercise of powers under the said provision as it is not necessary that there has to be actual breach of peace in order to invoke the same. Thus, this Court fnds that the order passed by the learned Sessions Judge disturbing order of Executive Magistrate deserves interference. 7. As far as contention of learned Senior Counsel appearing on behalf of respondent No. 1 that fling of the proceedings under Money Lending Act bars further continuation of the proceedings under Section 145 of the Code of Criminal Procedure in view of the judgment of Hon’ble Apex Court in Ramjanmabhoomi case is concerned, he drew attention of the Court to paragraph no. 299 of the judgment wherein it is held that fling of the civil suit bars remedy under Section 145 of Code of Criminal Procedure and during the pendency of the same, the proceedings under these provisions cannot be permitted to be continued. The Hon’ble Apex Court has prohibited continuation of such proceedings taking into consideration the powers of Civil Court more particularly powers to