Court No. - 74
Case :- MATTERS UNDER ARTICLE 227 No. - 3614 of 2020 Petitioner :- Wasim And Another Respondent :- State Of U P And Another Counsel for Petitioner :- Sanjay Kumar Srivastava Counsel for Respondent :- G.A.,Pramod Kumar
Hon'ble J.J. Munir,J.
Heard Mr. Santosh Kumar Srivastava, learned Counsel for the petitioners, Mr. Pramod Kumar, learned Counsel appearing on behalf of respondent no. 2 and Mr. Shamsher Bahadur Maurya, learned A.G.A. appearing on behalf of the State.
The petitioners have come up, challenging an order dated 06.06.2018, directing attachment of property by the Magistrate in proceedings under Section 146(1) Cr.P.C., on ground of emergency and an order dated 29.01.2020 passed by the Additional Sessions Judge, Court no. 3, Azamgarh, affirming that order in Revision.
The submission of the learned Counsel for the petitioners is that the petitioners are in possession of the shop in dispute, wherein they were earlier tenants. They have, subsequently, purchased the said shop through a registered sale deed executed by one Khalid, the recorded owner of the said shop. The second respondent claims to have purchased the said shop, also through a sale deed executed by Mohd. Shafiq @ Syed and Mohd. Atiq, sons of Mohd. Shivli.
As the matter stands, a preliminary order under Section 145 (1) Cr.P.C. has been passed, looking to the fact that relating to possession of the shop in question located at Mohalla Islampura, Kasba Mubarakpur, P.S. Mubarakpur, District Azamgarh, there is a dispute between parties, which is likely to lead to a breach of peace. Now, pending these proceedings, it was brought to the notice of the Magistrate through a police report dated 20.05.2018 that the property in dispute comprises two shops located in Gata no.368, which have been purchased from Mohd. Shafiq and Atiq, both sons of Mohd. Shivli through a registered sale deed dated 22.07.2016, executed in favour of the second opposite party's wife, that is to say, Smt. Urmila Devi. It was also brought to the Magistrate's notice that based on the aforesaid sale deed, mutation in favour of Smt. Urmila Devi wife of Ramesh Chandra Maurya has been granted. The report also discloses that the two shops are in possession of applicant no.1, Mohd. Wasim and Azim, both sons of Khairul Bashar, who have occupied these unauthorizedly.
The second opposite party and his wife are asking them to vacate the shops, which they now own and are recorded owners. It has been recorded that the shops are located in a Muslim dominated locality, where the dispute has been assessed by the Magistrate to have the potential of inviting a communal flare-up and consequent breach of peace. This situation has been regarded as one of emergency, contemplated under Section 146(1) Cr.P.C., where the Magistrate may immediately proceed to attach pending determination of the fact as to which party was in actual possession of the property in dispute on the date of the preliminary order or two months anterior to it. This order has been upheld in Revision.
Learned counsel for the petitioners submits that there is a civil suit pending between the parties, involving title to the shop in dispute. The said suit is Civil Suit No. 2213 of 2016, Wasim v. Ramesh, pending before the Civil Judge (Junior Division) Haveli, District - Azamgarh. Learned counsel urges that pending a regular suit about the parties' entitlement, the Magistrate had no jurisdiction to initiate proceedings under Section 145 Cr.P.C., much less order of attachment, pending those proceedings. It must be remarked that the principles which restrain the Magistrate from interfering in a matter regarding dispute over possession of immovable property involving breach of peace, are attracted where a civil suit relating to the dispute is pending inter partes and there is an order of temporary injunction in force. There is no case here that the civil court has passed any kind of a temporary injunction, ad interim or absolute.
Upon hearing learned Counsel for parties, this Court is satisfied that in the facts obtaining here, the Magistrate has rightly exercised his jurisdiction to attach pending decision of proceedings under Section 145 Cr.P.C. The Revisional Court has approved the Magistrate's order, and for good reasons.
This Court does not find any valid ground to interfere with the orders impugned. However, looking to the fact that rights of parties ought not to remain in limbo, particularly, in a matter regarding possession of something like a shop, which is a source of livelihood, the Sub-Divisional Magistrate, Sadar, Azamgarh is ordered to decide pending Case no.33, Ramesh Chandra vs. Waseem and others, under Section 145 Cr.P.C. within a period of two months from the date of receipt of a copy of this order, in accordance with law, after hearing the parties concerned.
This petition is disposed of in terms of the aforesaid orders.
Let this order be communicated to the Sub-Divisional Magistrate, Sadar, Azamgarh through the District Magistrate, Azamgarh by the Joint Registrar (Compliance).
Order Date :- 6.1.2021/Anoop