SHAH NAWAZ Versus SUB-DIVISIONAL MAGISTRATE,NAUSHERO FEROZE

This is an application under section 561‑A, Cr. P. C. praying for the quashment of the order dated 17‑9‑1971, passed by the S. D., M., Naushahro Feroze, respondent No. 1, whereby proceedings under section 145, Cr. P. C. have been initiated in respect of agricultural lands, measuring about 500 acres, in Deli Shahmir Dero, Taluka Kandiaro, the said lands have been attached and the Mukhtiarkar, Kandiaro has been appointed as Receiver of said property.

2. The circumstances in which this application has been filed are as follows: --‑

Applicant Shahnawaz has two wives, one being the sister of respon dent No. 2, Sirajulhaq, from whom he has one son, namely, respon dent No. 6 Badruddin, and from the second wife he has five sons, including applicants 2 to 4, Ghulam Mustafa, Ali Nawaz and Abdul Kader. According to applicant Shahnawaz, he had inherited about 500 acres of land in Dehs Shahmir‑Dero and Machi. Taluka Kandiaro, but under the influence of his wife, who is the mother of respondent Badruddin, he made a statement before the Mukhtiarkar, Kandiaro, on 12‑10‑1961, to the effect that he had inherited his sons from his second wife and that he was making gift of the lands, which are the subject‑matter of the present dispute, to his son Badruddin. As the possession of the lands was not handed over to respondent Badruddin, and further by a subsequent statement made on 18‑11‑1963 to the Mukhtiarkar, Kandiaro, he revoked the gift, respondent Badruddin, with the active help of certain persons tried to dispossess him and take forcible possession of lands, where upon he filed Second Class Suit No. 156 of 1968, in the Court of Civil Judge, Nausharo Feroze, against respondent Badruddin, challenging the alleged gift in the year 1961 and asserting his posses sion and ownership of the land. It, however, appears, that this suit ended in compromise according to the terms whereof, posses sion of 76 paisa share in the lands in dispute was to be with the respondent Badruddin, and the balance of 25 paisa share in the land was to be with applicant Shahnawaz. It, however, was the contention of applicant Shahnawaz that despite the compromise neither title in respect of any share in the lands stood transferred to respondent Badruddin nor was possession of any part of the land delivered to him, but be remained exclusively in possession of the said lands, and in order to ascertain his right and title over the said lands, in the year 1970, he filed First Class Suit No. 194/1970, which was withdrawn with permission to file a fresh suit, and thereafter, he filed First Class Suit No. 17/71, in the Court of Civil Judge, Nawabshah, against respondent Badruddin, the District Magistrate, Nawabshah the Assistant Commissioner, Nausharo Feroze and Mukhtiarkar, Kandiaro, praying inter alia for a permanent injunction, restraining the aforesaid persons from interfering with his right, title and possession over the above lands by themselves or through any of their agents or subordinates. In that suit, on the application of applicant Shahnawaz, an interim order for status quo was passed by the learned Civil Judge, Nawabshah, on 10‑2‑1971, which is still in force.

3. It appears that in the month of September 1970, before the aforesaid First Class Civil Suit was filed and the order for status quo was issued, the learned S. D. M., Nausharo Feroze, on the application of S. H. O., Kandi aro, initiated proceedings under section 145, Cr. P. C. against the applicant and certain other persons and passed an order attaching the land in question. Against the said order, applicant Shahnawaz filed a revision petition before the Sessions Judge, Nawabshah, who made a reference to the High Court. A learned Judge of this High Court, vide his order dated 20‑7‑1971, accepted the reference and quashed the order of S. D. M., Nausharo Feroze and the proceedings taken by him, on the ground that there was no allegation about the dispute over land or crop, but there was only an expression of pressure to hand over the crop was alleged, which could at best form an action under section 107, Cr. P. C.

5. Subsequently, on 21‑8‑1971, a report was submitted by the S. H. O., Kandiaro, to the S. D. M., Nausharo Feroze, alleging the existence of a serious dispute over the possession of the land in question and hatai of its produce between the party of applicant Ali Nawaz and the party of respondent Sirajulhaq since 1970, as a result whereof, despite proceedings being taken against both the parties under section 107/151, Cr. P. C., which were still pending, seven persons from the party of respondent Sirajulhaq and one person from the party of applicant Alinawaz had been murdered during the course of a single year and numerous cases, including cases of murder, dacoity, etc., had been filed against persons of both parties, and requesting, in view of the danger of increased tension and fresh blood shed as the cotton crop was about to be ready for picking, the taking of early action under section 145, Cr. P. C., including the appointment of a receiver, so that the produce may remain with Government. It was on this report that the learned S. D. M., Nausharo Feroze, some twenty‑five days later, passed the impugned order requiring the parties to appear before him on 30‑11‑1971, and put in Written Statements of their respective claims and fact of actual possession and, as in his view, the case was one of emergency, attaching the land appointing the Mukhtiarkar, Kandiaro, as receiver with direction to take over possession of the land and render account of the income and expenditure from the land.

6. The four grounds on which Mr. Abdul Aziz, the learned counsel for the applicants, attempted to assail the impugned order are:

(i) that there was nothing to indicate that the case was one of emergency ;

(ii) that no order for appointment of a Receiver can be made under section 145(1) and (4), Cr. P: C., but such order can only be made under section 146, Cr. P. C., on conclusion of the inquiry under section 145, Cr. P. C. ;

(iii) that in view of the civil suit and the order for maintenance of status quo by the civil Court, no proceedings under section 145, Cr. P. C. could be taken.

7. The learned counsel appearing for respondent No. 1 conceded presumably in view of the order of the High Court quashing the earlier proceedings under section 145, Cr. P. C., that there was no‑dispute regarding the physical possession of the land, but sought to support the order for attachment and the appointment of receiver, on the ground that the dispute was in respect of the produce of the land which was about to be gathered and that further the order for maintenance of status quo was directed only against respondent Badauddin. The other respondents, though served, have chosen to remain absent and no appearance on their behalf was entered.

8. The contention of the learned counsel for the applicants that this is not a case of emergency appears to be without substance. The S. H. O. Kandiaro, in his report, while mentioning the fact that as a result of the dispute between the parties over the land there had been as many as eight murders during the course of a single year and other cases involving bloodshed and violence between the parties, necessitating the posting of additional police, has requested for early action under section 145, Cr. P. C., including the appointment of a receiver, in view of the fact that the new cotton crop was going to be ready and one party had brought men from outside and settled them on the land with a view to resorting to force. The learned S. D. M. himself, in his order, has specifically stated that he was satisfied that the case is one of emergency.

9. I now proceed to examine the second contention of the learned counsel appearing for the applicants regarding the appointment of a receiver. It is true, as contended by him, that whereas section 146, Cr. P. C. specifically empowers a Magistrate to appoint a receiver, there is no such provision in section 145, Cr. P. C., but does that mean that even in case of an emergency contemplated by section 145 (4), Cr. P. C., the Magistrate can only attach the subject‑matter of dispute and pass no consequential or other order regarding the custody, safety and even provisional management of such subject‑matter. Supposing the subject‑matter of the dispute is an orchard or a garden, can the Magistrate, after attachment, not authorise some responsible person to look after the same or make arrangement for its watering, preventing pilferage of its produce, etc. In the absence of any such order, not only the produce of the subject‑matter of the dispute, B but the subject‑matter itself, could be liable to serious damage. In such cases at least, it seems to me, that the Magistrate could under section 145 (4), Cr. P. C. pass an interim order for the custody and supervision of the property in dispute and appoint a person to manage the same. Although such a person would not be a Receiver, the mere use of the word "Receiver" by the Magistrate to describe him would not vitiate the order. In the case reported in P L D 1969 Lah. 74, M. A. Cheema, J. examined the question as to what are the powers of a Magis trate under the second proviso to section 145 (4), Cr. P. C. to deal with the property attached by him under the said proviso. After examining various authorities on the subject, he came to the conclusion that despite the absence of any provision in section 145, Cr. P. C. regarding the appointment of a Receiver, it cannot be said that having attached the property, the Magistrate is absolutely helpless to deal with it in a proper manner, and while upholding the order of the Magistrate appointing the Girdawar and Patwari as the receivers of the property which had been attached under the second proviso to section 145(4), Cr. P. C., observed as follows:

"Having regard to the above authorities, I am satisfied that the use of the word "receiver" by the learned Magistrate in respect of the Girdawar and the Patwari may be condoned as not being vitiative of the proceedings. It is abundantly clear to me that although the word "receiver" was actually used by the learned Magistrate the appointment of the two Lambardars in the first instance later substituted by the Girdawar and the Patwari was made only with the object of handing over to them the custody, management and control of the attached property and as such the appointment may be deemed to have been made as an inevitable measure, consequential ,to the attachment of the property under the second proviso to section 145 of the Code. The use of the word "receiver" may only to be regarded as a misnomer for manager or a Superdar, which in the light of the authorities discussed above would not per se be good enough to invalidate the impugned order."

10. It was also contended by the learned Advocate for the applicant that even the preliminary order of attachment under section 145(4), Cr. P. C. could only be made after inquiry. This contention is without force in view of the decision of the Supreme Court in Manzoor Elahi v. Lala Bisham-bardas ( P L D 1964 S C 137 ) wherein Hamoodur Rahman, J. (as he then was), observed as follows: --‑

"It has to be remembered that the preliminary order is not made after any exhaustive inquiry but is in most cases an ex parte order based either on the report of the police or upon the allegations contained in the application for initiation of proceedings."

11. There remains the question whether during the pending of the civil suit and while the order of status quo by the learned Civil Judge, Nawabshah, was still in force, proceedings under section 145, Cr. P. C., including an order for attachment of the property and appointment of a Receiver thereof, were competent. It is not disputed that the subject matter both in the civil suit and the section 145, Cr. P. C. proceedings is the ‑same. As already indicated, the learned counsel appearing for respondent No. 1, has conceded 'that there is no dispute regarding the possession of the property but has contended that as there is a dispute in regard to the distribution of the crop of the land, and as crops are included in the definition of land for the purpose of section 145, Cr. P. C., proceedings under the said section in respect of the crop of the lands, including its attachment and appointment of a receiver therefore would be competent. He has further contended that the parties in civil suit are quite different from the parties in the present suit. The applicant has filed certified copies of the plaint in F. C. Suit No. 17/71, and the order passed therein for the maintenance of status quo. A perusal of the plaint indicates that the plaintiff in that suit is the present applicant Shah Nawaz, while the main defendant is respondent Badruddin and the other defendants are Government officials, including the Assistant Commissioner of Nausharo Feroze and the Mukhtiarkar, Kandiaro, who has been appointed as receiver by the S. D. M., Nausharo Feroze. It is not disputed that the same officer is both the Assistant Commissioner, Naushora Feroze, as well as the S. D. M., Nausharo Feroze. It would thus appear that the impugned order has been issued by the same officer who is a defendant in the suit filed by applicant Shahnawaz. Although the order for maintenance of status quo is only against respondent Badruddin, it may be pointed out that he is one of the .main parties to the dispute and even according to the report of S. H. O., Kandiaro, Badruddin is being backed in the dispute with his father, Shah Nawaz, by his maternal uncle, ‑respondent Sirajulhaq. It further appears that respondent Aijaz Ali and Ilahi Bux are brothers of respondent Sirajulhaq while respondent Haji Ghulam Muhammad is their father. The main parties to the section 145, Cr. P., C. proceedings thus appear to be the same as in the civil suit and even in the order for maintenance of status quo. The proceedings under section 145, D .Cr. P. C. are in the nature of stop‑gap arrangements and must in disputes as to immovable property yield to orders of the civil Courts, which alone are competent to determine questions of title and right of possession to immovable property. Of course, the mere fact that civil suit is filed or is pending in regard to the subject‑matter of the dispute is not by itself sufficient to oust the jurisdiction of the Magistrate under section 145, Cr. P. C., but where a civil Court has passed an order in regard to any immovable property which is in dispute, whether such order was passed before or after the initiation of proceedings under section 145, Cr. P. C., the Magistrate must respect such order, and any orders by the Magistrate in respect of the said property have to be subservient thereto. In Shah Muhammad v. Shah Nawaz (P L D 1970 S C 470) their Lordships of the Supreme Court, while holding that the order passed by the Additional District Magistrate, Gujranwala, under section 145(1), Cr. P. C., directing the police to seal the disputed premises, was clearly illegal, no matter how wide the scope of section 145, Cr. P. C. may be, held as under: --‑

"The conclusion, we have reached thus, is that a case in which a civil Court is already seized with the subject‑matter of dispute and has passed au order regulating possession thereof or a case in which a, decree for possession has been granted or a permanent injunction granted restraining the opposite‑party from interfering with the possessions of the decree‑holder fall outside the jurisdiction of a Magis trate under section 145, Cr. P. C. option of course can be taken, always under sections 107 and 151 of the Criminal Procedure Code to, prevent breach of peace in case of this nature, but no order for attachment of the property can be made."

14. In view of the above decision of their Lordships of the Supreme- Court, it is clear that the order passed by the learned S. D. M., during the pendency of the civil suit and operation of the status quo order, is illegal and of no effect. I would accordingly set aside the impugned order and quash: the proceedings under section 145, Cr. P. C. taken by the learned S. D. M. Nausharo Feroze, District Nawabshah.

S. A. H.

Proceedings quashed.