B. SIMANCHALAN Vs. BASANTA KUMAR BEBERTA AND ORS.
HIGH COURT OF ORISSA
Basanta Kumar Beberta And Ors.
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S.C. Mohapatra, J. -
(1.) REFUSAL to drop two proceedings under Section 145, Code of Criminal Procedure is assailed by the second party member in these two applications. As the parties are the same and point of dispute to be decided is the same in both the applications, they were heard together and are disposed of in this judgment.
(2.) ON the basis of police report preliminary order was passed On 11.9.1986 in respect of 342 decimals out of 3 acres of land in plot No. 1144. Both the parties were directed not to enter upon the land. On 6.11.1986, the Revenue Inspector, Gurandi was appointed as receiver and was directed to sell the standing crop by auction. On 10.11.1986, in place of Revenue Inspector, Gurandi, such officer of Garabandha was appointed as receiver. Later, it was found that the area is 66 decimals which the Revenue Inspector took charge. Against the order dated 6.11.1986. Petitioner went in revision to the Sessions Judge but ultimately the same was dismissed. On 12.11.1986, first party filed an application for initiation of a proceeding in respect of 2 acres 28 decimals of land in plot No. 1144. On receipt of police report preliminary order was passed on 24.11.1986 and the Revenue Inspector was directed to be the receiver of the crop and to sell the standing crop by auction. Both parties warp prohibited to enter upon the disputed land.
On 18.3.1987, the second party -Petitioner filed two petitions to drop the proceedings since he is reported to be a tenant by the police. By order dated 25.6.1987 the Petitioner's petitions were dismissed on the finding that the apprehension of breach of peach having existed, the pendency of a proceeding before the Revenue Officer for relationship of landlord and tenant would not justify dropping of the proceeding. For the said conclusion the learned Magistrate relied upon the decision reported in, 57 (1884) C.L.T. 145 (Brajamohan Nath v. Smt. Kesi Tripathy and Anr.). Aggrieved by the aforesaid order, these two applications have been filed in this Court.
Relying upon the decisions reported in : 62 (1986) CLT 146 (Keshab Das and Ors. v. Bauribandhu Behera and Ors.) and : A.I.R. 1985 S.C. 472 (Ram Sumer Puri Mahant v. State of U.P. and Ors.). Mr. J. Patnaik, the learned Counsel for the Petitioner, submitted that in view of the pendency of the proceeding under the Orissa Land Reforms Act where the dispute can be finally concluded, the proceedings under Section 145, Code of Criminal Procedure are to be dropped.
Mr. A.C. Panda, the learned Counsel for the first party -opposite party on the other hand contested the position and relying upon the decisions reported in 1969 S.C.D. Sajjan Singh s/o Jagannath Singh v. Sajjan Singh s/o Bhairu Singh and Anr., A.I.R 1960 S.C. 242 Mathuralal v. Bnanwarlal and Anr. and, 1981 Cri. L.J. 1172 (Del) (Ashrafi Lal v. Labh Singh and Ors.) submitted that absence of apprehension of breach of peace is the pre -condition for dropping of proceeding and mere pendency of a proceeding to decide the rights of parties cannot be the basis for dropping of the proceedings the main object of which is prevention of breach of peace.
(3.) DURING pendency of these two applications an affidavit has been filed stating that the Revenue Officer has been moved to appoint a receiver and although the matter has been heard, no order has been passed.;
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