Shri Zeiringkhon Kamei & Ors. v. Kiungampou Gonmei

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR For the petitioners For the respondent Date of Order : : : Ms. I. Lenibala, Advocate Mr. N. Ibotombi, Sr. Advocate

19.09.2022 ORDER By way of this revision petition filed under Article 227 of the Constitution, the respondents in Cril. Revision Case No. 4 of 2014 assail the judgment and order dated 28.11.2016 passed therein by the learned Sessions Judge, Imphal West, allowing the said revision. Heard Ms. I. Lenibala, learned counsel for the petitioners; and Mr. N. Ibotombi, learned senior counsel, appearing for the respondent, viz., the petitioner in Cril. Revision Case No. 4 of 2014. Challenge in Cril. Revision Case No. 4 of 2014 was to the order dated

30.09.1993 passed by the Sub-Divisional Magistrate, Tamenglong, in Cril. Misc. Case No. 28 of 1993. The said miscellaneous case was filed by the 2 petitioners herein claiming that they were the Chairman and the Secretary of Keikao Village Authority respectively and that they represented the villagers of Keikao Village. According to them, they were enjoying the right of possession over a particular piece of land but a few months earlier, a dispute was raised in relation thereto by the villagers of Tingjang Village. While so, on the application submitted by the Chief of Tingjang Village, the Sub-Divisional Magistrate, Tamenglong, took up proceedings under Section 145 Cr.P.C. and passed an order in Misc. Case No. 19 of 1991 on 10.11.1992, directing both parties not to enter into the disputed land and leaving it open to them to approach a higher competent authority on the question of right and title. According to the applicants in Cril. Misc. Case No. 28 of 1993, the Chief of Tingjang Village filed O.S. No. 4 of 1991 before the learned Munsiff’s Court at Tamenglong but the same was dismissed on 10.09.1993. On this basis, they claimed that the Chief of Tingjang Village had no right or possession over the disputed land. Accepting their plea, the Sub-Divisional Magistrate, Tamenglong, passed the order dated 30.09.1993, recording his satisfaction therein that there appeared to be no possibility of breach of peace and public tranquility in relation to the disputed land and exercised power under Section 145(6) Cr.P.C, holding that the applicants and the villagers of Keikao Village were entitled to possession of the disputed land unless evicted therefrom in accordance with law. Aggrieved by this order, the respondent herein filed Cril. Revision Case No. 4 of 2014 before the learned Session Judge, Imphal West, under Sections 397 and 399 Cr.P.C. His main ground therein was that the Sub- 3 Divisional Magistrate, Tamenglong, had not issued any notice or summons to the parties to dispute before acting upon the application filed before him. Having satisfied himself on the aspect of delay, the learned Sessions Judge noted that the case record of Cril. Misc. Case No. 28 of 1993 was not available as per the letter dated 16.01.2015 of the Sub-Divisional Magistrate, Tamenglong, wherein it was stated that it either untraceable or might have been destroyed in a fire accident that took place in April, 2006. However, as a certified copy of the order dated 30.09.1993 was available, the learned Sessions Judge extracted the same in its entirety in his order. Having minutely considered the contents thereof, the learned Sessions Judge noted that even as per the Sub-Divisional Magistrate, Tamenglong, there was no breach of peace or tranquility in relation to the disputed land as on the date of passing of the order, viz., 30.09.1993, and as that is a sine qua non under Section 145 Cr.P.C., the learned Sessions Judge opined that the Sub-Divisional Magistrate had no occasion to exercise power under Section 145 Cr.P.C. The learned Sessions Judge also noted that no enquiry was taken up by the Sub-Divisional Magistrate by involving all the parties concerned before passing the order. In the result, the learned Sessions Judge concluded that the order passed by the Sub-Divisional Magistrate, Tamenglong, was contrary to the procedure envisaged under Section 145 Cr.P.C and set it aside. The revision was therefore allowed, leading to the filing of this revision. Ms. I. Lenibala, learned counsel, would contend that it was not open to the learned Sessions Judge, Imphal West, to interfere with the order when the case record pertaining thereto was not available for perusal. However, 4 she has no answer as to how the Sub-Divisional Magistrate, Tamenglong, could have exercised jurisdiction under Section 145 Cr.P.C. when he himself had recorded in the order that there was no possibility of any breach of peace or tranquility in relation to the disputed land at that time. Section 145(1) Cr.P.C makes it clear that it is only when there is a dispute that is likely to cause breach of peace concerning any land that the Magistrate concerned would have jurisdiction to pass an order thereunder. Further, exercise of power under Section 145(6) Cr.P.C. arises only if the Magistrate decides under the proviso to Section 145(4) Cr.P.C that one of the parties should be treated as being in possession of the land. The proviso to Section 145(4) Cr.P.C. states that the Magistrate must satisfy himself that a party was forcibly and wrongfully dispossessed within two months next before the date on which the report of the police officer or other information was received by the Magistrate under Section 145 (1) Cr.P.C. Therefore, unless such dispossession takes place, the question of exercising power under Section 145(6) Cr.P.C would not arise. In the case on hand, there was no claim of forcible dispossession from the land at any point of time. It appears that villagers of both the villages claimed that the land belonged to them. In that context, the Sub-Divisional Magistrate had noted in the order dated 10.11.1992 passed in Misc. Case No. 19 of 1991 that it was difficult to ascertain who was the actual possessor of the land and as he was incompetent to decide the question of title, a preventive order was necessary. He, accordingly, directed both parties not to enter into the land for a period of 2 months. Therefore, the later order dated 5

30.09.1993 was not in continuation of the earlier order, which had worked itself out by efflux of time, and was passed in fresh proceedings. Even if it was to be treated as being in continuation of the earlier order, the Sub-Divisional Magistrate did not put the other parties thereto on notice or afford them an opportunity of hearing before passing the later order. In fact, no inquiry was held by the Sub-Divisional Magistrate before passing the order and he straightaway accepted whatever was stated by the applicants before him. Significantly, the Sub-Divisional Magistrate did not even ascertain the nature of the suit claim in O.S. No. 4 of 1991 on the file of the learned Munsiff’s Court at Tamenglong and proceeded under the assumption that its dismissal vested the applicants with title. That apart, as already noted hereinabove, it was never the claim of the applicants that they were dispossessed. On the other hand, they claimed that they were the rightful owners and possessors of the land in question. On the above analysis, even in the absence of the case record, the learned Sessions Judge, Imphal West, was fully justified in setting aside the order dated 30.09.1993 of the Sub-Divisional Magistrate, Tamenglong, in Cri. Misc. Case No. 28 of 1993. This revision is therefore devoid of merit and is accordingly dismissed. No order as to costs. Indrajeet CHIEF JUSTICE