Post on 31-Jan-2023
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IN THE COURT OF ADDL. SESSIONS JUDGE :: KAMRUP :: AMINGAON
District: Kamrup, Amingaon
Present: Smti. B. Kshetry
Addl. Sessions Judge,
Kamrup, Amingaon
Criminal Revision case No.31/2019
1. Smti. Kamini Das,
2. Sri Dwizen Das,
3. Sri Nayan Das,
4. Sri Arup Das,
All are wife and sons of Late Bhupen Das
5. Sri Chidananda Das
S/o-Late Chandi Das
Village-Menapara,
P.O-Maniyari Tiniali,
Mouza-Chayani,
P.S-Palashbari,
Dist-Kamrup.
----------------------Petitioners
-Versus-
1. Sri Simanta Das,
S/o- Late Tarun Das
2. Sri Naba Das,
S/o- Late Tarun Das,
R/o- Village- Amranga,
Medhipara, Mouza-Chayani,
P.S-Palashbari,
Dist-Kamrup.
-------------------Opposite Party
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Appearance:
Mr. B. K. Sarma, Ld. Advocate --------------for the Petitioners
Smti. Minakshi Das, Ld. Advocate ------------for the Opposite Party
Date of Hearing: 04.11.2019 04.06.2020
Date of Order: 25.06.2020
ORDER
1. This is a revision petition filed u/s 397 r/w section. 401 Cr. PC by the
petitioners against the impugned order dated. 15.05.2019 passed by the Learned Addl.
District Magistrate, Kamrup, District at Amingaon suspending the Final Order dated.
10.05.2019 (vide Memo No.253 dated 14.05.2019) passed by him in case No.
123m/2018 u/s 145/146 Cr.PC and fixing 28.06.2019 as next date of the case with a
prayer to set aside the impugned order dated 15.05.2019.
2. The petitioner’s case is that one Bhupen Das, since deceased, the
predecessor of the petitioner Nos.1 to 4 and the petitioner No.5 who are the own
brothers are the recorded tenants of the land measuring 5 bighas and 7 lechas out of
which 4 bighas and 2 Lechas is covered by the Dag no. 352 and 1 Bigha 5 Lechas
covered by the Dag No. 354 of village- Amranga under Chayani Mouza of Kamrup
district. That the land of the said two dags is the agricultural land and the Khatian
bearing Khatian No. 7 of village Aranga stands in the name of Thapo Dasya and her
two sons, namely, Bhupen Das, since deceased, the predecessor of the petitioner Nos.
1 to 4 and Sri Chidananda Das, the petitioner No. 5. And, as such, the petitioners since
the time of their grandfather and father have been holding and possessing the disputed
land as the recorded tenant.
3. It is stated that the opposite party men are greedy and dangerous persons.
They made attempt to forcibly occupy the petitioner’s aforesaid land for which the
predecessor of the petitioners was 1 to 4 and petitioner no.5 submitted an application
before the A.D.M, Kamrup at Amingaon to draw up a proceeding u/s 145/146 Cr. PC.
That the ld. ADM having been satisfied that there existed the likelihood of the serious
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break of peace and public tranquility with respect to the disputed land measuring 5
bighas and 7 lechas covered by the Dag No. 352 and 354 of the KP Patta No. 98 of
village- Amranga under Chayani Mouza of Palashbari Police Station within the
boundaries such as in the North- Dag No. 352,353,355 in South- Land of Dag No. 351,
590, in East- Road and Dag No. 358 and in West-Road and Dag No. 350 vide his order
dated. 02.08.2018 passed the preliminary order drawing up the proceeding U/s 145
Cr. PC and registering a case bearing Case No. 123m/2018 and issued notices to the
second party fixing the date 03.09.2018 for submission of written statements. In
pursuance of the notices, the second party also appeared in the case and the Ld. ADM
proceeded with the enquiry of the case. The 2nd party although appeared but they did
not submit their written statements putting forth their claims over the disputed land.
That the ld. Trial Court in course of his enquiry into the case examined the 1st party
and perused the documents submitted by the 1st party petitioner. That the Ld. Trial
Court after hearing the 1st party and considering the documents submitted by the 1st
party petitioner having found the 1st party who have been possessing the disputed
land as recorded tenants and as such, he passed the final order declaring possession
of the disputed land in favour of the 1st party.
4. It is also stated that the 2nd party after some days approached the District
Magistrate, Kamrup and submitted an application before him. The Ld. District
Magistrate sent the petition to the Ld. Trial court with some note and the Ld. Magistrate
on the said application sent by the District Magistrate acting without jurisdiction
passed an order dated 15.05.2019 suspending the final order passed by him on
10.05.2019 (vide Memo No.253 dated 14.05.2019) and fixed 28.06.2019 as the next
date of the case.
5. Being highly aggrieved at and dissatisfied with the order dated. 15.05.2019
the petitioner preferred the revision on the following amongst other :-
(I) For that the Ld. ADM have passed the impugned order
erroneously and without jurisdiction and, as such, the same is
liable to be set aside.
(II) For that once the final order is passed the same court cannot
revised his own order. That only the court of Session Judge or
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the High Court U/S 397 and 401 of the Cr. PC could revise the
same.
(III) For that the Ld. Trial Court could not revise the order at the
instance of the District Magistrate who is not empowered by
the law to do so except transferring a pending from one court
to another.
(IV) For that in view of the matter the impugned order is quite
illegal, without jurisdiction and the same would cause the
abuse of the process of the court for which the same is liable
to be set- aside.
6. On receiving notices, the Opposite Parties appeared in this case and
filed their written objection stating that the petition is not maintainable in the
present law and facts and there is no cause of action to file the present petition.
It is further stated that the revisionists have no right, title, interest and possession
over the D/L and they have filed their petition by concealing the actual facts.
7. It is stated that the petitioners have filed this instant Criminal Revision
petition by challenging the order dated. 15.05.2019 passed in Case No. 123m/18
by the Addl. District Magistrate, Kamrup, Amingaon which is not the final order
of the said case and the said order dated. 15.05.2019 is an interlocutory order in
nature. No revision petition lies against any interlocutory order passed by the
competent court below. So the revision petition filed by the petitioners is liable
to be dismissed.
8. It is denied that the predecessor of the petitioner No. 1 to 4 and the
petitioner No. 5 was the recorded Tenants of the land measuring 5 Bighas 7
lechas covered by Dag No. 352 and 354 of the alleged and they have been
possessing the disputed land since the time of their grandfather as recorded
tenant. In this regard the respondents stated that they have been possessing the
said alleged disputed land since time immemorial till date without any interruption
of possession over the said land at any point of time. The ancestor of the
petitioner no. 1 to 4 and the petitioner No. 5 along with one Mona Dasya had
illegally and falsely recorded their name in the land record for their illegal gain
and benefit which is self explanatory from the land record of the schedule land.
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Though the name of Mano Dasya S/O Late Chandi along with Bhupen Das and
Chidananda Das were appearing falsely as Riyats over the land of Dag No. 352
but as the said alleged Riyats never any kind of possession over the said land, so
the legal heirs of Mano Dasya have not made any claim to that effect.
9. It is denied that the opposite parties are greedy and dangerous
persons, they had made attempt to forcefully occupy the land of the petitioners
for which the predecessors of the petitioners No. 1 to 4 and the petitioner No. 5
submitted an application before the ADM, Kamrup, Amingaon to draw up a
proceeding u/s 145/146 Cr. PC.
10. It is denied that the ld. Trial Court in course of his inquiry into the
case examined the 1st party and perused the documents submitted by the
petitioners, passed the final order dated. 10.05.2019 declaring the possession of
the disputed land in favour of the 1st party. Opposite parties stated that the
Additional District Magistrate Kamrup, Amingaon vide its order dated. 02.08.2018
passed in Case No. 123m/18 was pleased to draw up a proceeding u/s 145 Cr.
PC and also called for a status report of the disputed land Memo No. 437 dated.
02.08.2018 from the Circle Officer, Palashbari Revenue Circle before the next
date. The ld. Circle Officer of Palashbari Revenue Circle has submitted her status
report in respect of the disputed land as called before the ADM, Kamrup,
Amingaon vide No. PC-60/2017/1302 dated. 28.08.2018. In the said status report
submitted by the Circle Officer, Palashbari Revenue Circle clearly stated that the
present respondents have been possessing the said disputed land. After receiving
the report from the Circle Officer, Palashbari Revenue Circle and perusal of the
case record, the Ld. ADM passed the order dated. 14.05.2019 in Case No.
123m/2018. Though the ld. ADM, Kamrup, Amingaon passed the order dated.
14.05.2019 but due to typing mistake in the said order wrongly inserted the word
1st party instead of the word 2nd party in his said order for which the present
respondents immediately on 15.05.2019 filed an application before the District
Magistrate, Kamrup, Amingaon stating their grievances. Accordingly the Ld. ADM,
Kamrup, Amingaon was pleased to suspended the order dated. 14.05.2019 until
decided by this court by fixing its next date as on 28.06.2019.
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11. It is stated that the District Magistrate allowed the petition dated.
15.05.2019 of the opposite parties and subsequently transferred the same to the
ADC to proceed the same. So, the order dated. 15.05.2019 is not illegal and
without jurisdiction.
12. The opposite parties stated that they as petitioners had filed a
Criminal Petition bearing Crl. Pet. No. 872/2019 before the Hon’ble Gauhati High
Court by challenging this instant proceedings to Criminal Revision Case no.
31/2019. In the said Crl. Petition, the Hon’ble Gauhati High Court in the said
order dated. 02.08.2019 passed in Crl. Petition No. 872/19 categorically stated
that “ Obviously the aforesaid proceeding before the Additional District
Magistrate, Kamurp, Amingaon registered U/S 145/146 Cr. PC is at
initial stage and the order dated. 15.05.2019 is not a final order.” If the
said order dated. 15.05.2019 is not a final order passed in Case No. 123m/18 by
the Ld. ADM, kamrup, Amingaon, so the Criminal revision Petition No. 31/19 filed
by the petitioners is liable to be dismissed and this Hon’ble Court may direct
both the parties to appear before the Ld. Trial Court below to contest their case
on merit.
13. I have carefully perused the case –record of case no 123 m/ 2018
u/s 145/146 Cr.P.C is received and the same is placed before this court. Perused
the same. Heard the oral submissions of the Learned Counsels for both the sides.
Also , perused the written submissions of the petitioner/ revisionist side. Learned
Counsel for the Opposite Party placed reliance on (1977) 1 SCC 169. Learned
Counsel for the opposite parties contended that the order dated 15.05.2019
passed by the Learned Addl.District Magistrate in case no 123m/ 2018 is merely
interlocutory order against which revision is not maintainable.
14. Keeping in mind the submissions advanced by the Learned Counsels
for both the sides, the point for determination is as :-
Whether the impugned order dated 15.05.2019 passed by the Learned
in case no 123m/ 2018 u/s 145/146 Cr.P.C is liable to be set aside, on the
grounds , as mentioned in revision petition ?
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DECISIONS AND REASONS THEREOF :-
15. Section 145/146 Cr.P.C
It may be mentioned that the Executive Magistrate , before invoking
Section 145 CrPC (i) it must be satisfied as to existence of a dispute likely to
cause a breach of peace concerning land or water ;(ii) pass an order in
writing;(iii) the order must state the ground of being satisfied;(iv) the order must
require the parties to attend the Court on a specified date and time and put in
written-statement as to actual possession of the subject matter of the dispute;
and (v)the subject matter of the dispute has to be decided in the order.
Possession referred to in Section 145 CrPC is actual and exclusive possession of
the subject matter. After issuing preliminary order and after serving copy of the
order passed under Section 145 (3) CrPC, the Magistrate is required to receive
all such evidence as may be produced by the parties and take such other
evidence, if any , as he may think necessary. A final order cannot be passed
under Section 145 (6) CrPC , unless he can decide which party was in possession
on the date of conditional order. If he is unable to decide that question, he can
make an order of attachment under Section 146 (1) CrPC. However under Section
145 (5) CrPC,the Magistrate at any time before a final order is passed under
Section 145 (6) CrPC , cancel the conditional order as soon as he is satisfied that
no such dispute likely to cause breach of peace. On the other hand, as per Section
146 CrPC , the Magistrate , in a proceeding under Section 145 CrPC , may issue
interim order of attachment at any time after passing an order under Section 145
(1) CrPC , when it appears to him (i) to be a case of emergency; (ii) if he decides
that none of the parties was actual possession or (iii) if he is unable to satisfy
himself as which of them was then in possession of the subject matter of dispute.
16. So, it is seen that from the case record of case no 123m /2018 that
vide order dated 02.08.18, after having gone through the police-report and
contentions made in the petition filed by the petitioners, Learned Addl. District
Magistrate was satisfied to draw up a proceeding u/s 145 Cr.P.C over the disputed
land directing both the parties to appear before the Court on the fixed date along
with the written –statement and other documents, if any, in support of their
respective claims over the disputed land.
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17. It is seen that as per order dated 14.05.2019, the Learned Court below
heard both the parties at length, perused the case-record and also the report
submitted by the concerned Circle Officer , Palashbari Revenue Circle and,
thereafter , passed the order dated 14.05.2019 .
The operative part of the said order runs as under –
“ After perusal of the case-record , submissions before me by both the
parties and report received from the Circle Officer, Palashbari Revenue Circle
dated 28.08.2018 vide No PC 60/2027/1302, following have been observed :
1st Party / Petitioners have been doing cultivation on the D/L scheduled
land since a long time as Ryot and that they have been paying revenue regularly.
2nd Party/Opposite party had made a forceful entry into the D/L and
started cultivation.
1st Party /Petitioners are registered Ryot but currently not in possession
of the D/L .
In view of the above, I declare possession of the D/L in favour of the 1ST
Party/Petitioner.
C.O , Palashbari Revenue Circle is directed to take necessary action as per
law in light of the above order.
O/C , Palashbari P.S is directed to take necessary action in laison with C.O
, Palashbari Revenue Circle.’’
18. Now, perusal of the order dated 14.05.2019 clearly shows that the same
has been passed after hearing both the parties and perusing all the relevant
records and thereafter, the possession of the D/L in favour of the 1ST Party/
Petitioner has been declared and the order is found to be full and final.
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19. Opposite parties stated that they approached the Learned Deputy
Commissioner , Kamrup, Amingaon and the Learned Deputy Commissioner issued
a direction to the Learned Trial Court to peruse the petition of the Counsel of the
Second Party.
20. It is found from the order dated 15.05.2019 that the Learned Trial
Court perused the petition filed by the Learned 2nd Party/Opp Party as directed
by the District Magistrate , Kamrup , Amingaon and , thereby, was pleased to
suspend the final order dated 10.05.2019.
The order dated 15.05.2019 reads as :- “CR put up before me today.
Perused the petition submitted by the learned Counsel of the 2nd
Party/Opp. Party as directed by the District Magistrate, Kamrup,
Amingaon.
Prayer is allowed.
The order dated 14.05.2019 issued vide No.253 is hereby suspended
until decided by this Court.
C.O.-Palashbari Revene Circle is directed to comply this order.
O/C, Palashbari P.S is hereby informed accordingly.”
21. Opposite parties in their raised objection on the ground that the
impugned order is an interlocutory order and that the order dated 15.05.2019
has been passed only for correcting the typing mistakes . Such type of objection
is not sustainable at all.
22. The order dated 15.05.2019 does not reflect that the same has been
passed only for correcting the topographical mistakes . So far the correction of
the typing mistake is concerned , it is not believable at all. So, the order passed
on 15.05.2019 is not maintainable in law as the same has been passed by the
same court over riding the final order dated 14.05.2019 passed earlier.
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23. The impugned order as passed by Learned Court on 15.05.2019 is
cryptic. From the aforesaid order , it is difficult to understand the ground of
satisfaction for suspending the order dated 14.05.2019 and to fix 28/06/2019 as
the next date. That apart, the aforesaid order under challenge is silent as to the
topographical mistake and the contents of the petition submitted by the Learned
Counsel of the 2nd Party/ Opp. Party. As regards their submission that of filing
Crl. Pet. No 872/2019 , the Hon’ble Gauhati High Court has been pleased to reject
the petition and directed them to raise the grievances before this Revisional Court
and the Learned Revisional Court shall consider and dispose of the same in
accordance with law.
24. For the above reasons , the revision petition is allowed and the
impugned order dated 15.05.2019 passed by the Learned Additional District
Magistrate in Case no 123 m/ 2018 u/s 145/146 Cr.P.C is, hereby, set aside.
25. Send back the case record of case no 123 m/ 2018 u/s 145/146 Cr.P.C
alongwith a copy of this Judgment and order.
26. The revision petition is disposed of.
27. Send back the LCR.
Given under my hand and seal of this Court on this 25th day of June, 2020.
Addl. Sessions Judge,
Kamrup, Amingaon