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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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Cont’d---

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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Cont’d---

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