B.D.Agarwal - (1.) THESE are applications in revision directed against an order of the Executive Magistrate Jaunpur, dated 26th February, 1985, arising out of proceedings under Section 145 Code; of Criminal Procedure (hereinafter referred to as the Code) between the parties. THESE proceedings were initiated upon an application filed by Murali dated March 17, 1981 in the Court of the Sub-Divisional Magistrate, Machhalishahar, district Jaunpur. The dispute is with respect to a petrol and diesel oil pump run under the name and style of 'Annapurna Filling Station' situate in village: Mirpur on the Allahabad- Jaunpur road. This case has a chequered history.
(2.) PRELIMINARY order was passed on March 18, 1981. Attachment was also directed the same day under the emergency clause of Section 146 (1) of the Code. The attachment was effected on March 19, 1981. Paras Nath Shukla and Murali both put in their respective written statement. An application was made by the Indian Oil Corporation Limited (hereinafter referred to as the 'Corporation') dated May 11, 1981, claiming a person interested to the effect that there is no apprehension of breach of peace involved, that Paras Nath Shukla is their duly appointed retail out let dealer and holds licence from the Excise Department and, as such, he is competent to continue to run the petrol pump. On June 2, 1981, the Magistrate quashed the proceeding under Section 145 (5) of the Code He directed release of the petrol tank and machine in favour of the Corporation and the land, including the sales room to Paras Nath Shukla- Murali filed Criminal revision no. 740 of 1981 against this order, which was decided by a learned single Judge (N. N. Sharma, J.) on December 4, 1981. The order dated June 2, 1981 was set aside. It was held that the Corporation was not a person interested, they ware not a party to the proceeding and no release in their favour could be made in any case. The case was remanded to the Magistrate with these observations and a direction to proceed according to law in view of Section 145 (4) and (5). Shukla applied under section 482 of the Code to quash the proceeding. The application was rejected on September 9, 1982, by a learned single Judge with the; observation that he might seek relief under Section 145 (5) before the Magistrate. The Corporation put in another application dated September 13, 1982, reiterating their earlier stand. Shukla filed a similar application on the same day under Section 145 (5). The Sub-Divisional Magistrate, Jaunpur, rejected these applications on May 16, 1983, with the findings that the Corporation was not a party interested nor in possession and that apprehension of breach of peace continued as between other two. The corporation came up in Criminal Revision No. 1033 of 1983 against this order, which was dismissed by P. N. Bakshi, J. on September 15, 1983, holding that the applicant Corporation was not a person interested. Special Leave petition filed by the Corporation against this order was dismissed summarily by the Supreme Court on October, 8, 1984, with the remark that if so advised the Corporation may file a suit. The chapter, therefore, relating to the interest claimed by the Corporation in the proceeding, thus, closed finally on October 8, 1984. Thereafter the Executive Magistrate [passed the impugned order dated February 26, 1985. Sri J. S. Senger, learned counsel for Murali, submitted candidly that the Magistrate has devcted himself to catolouing the arguments put forward on both sides but not to relevant comments or decision thereon. The Magistrate observes at one place in the order that he had to find as to who was in possession on the date of the preliminary order and for that it is not of much importance, according to him, as to which of the two parties was the authorised dealer to run the petrol pump. Curiously enough, despite this observation, he does not proceed to decide the crucial question posed by him and instead passed over to March 19, 1981, when the attachment was effected. It was observed, on the basis of the recitals contained in the attachment memo, drawn by the police, that it showed that there were two locks on the show room when the police went to the spot on the 19th and that the key of these locks was furnised by Shukla and Murali respectively and further that the drawer, containing Rs. 2314.15 besides certain papers, was opened with the key provided by Murali. This, according to the Magistrate, indicated that at the time of attachment the parties were in joint possession over the pump and hence it could not be found with definiteness as to which of the two parties was in possession. He went on to say that it could not be just to declare any one of the two to be in possession apprehension of breach of peace continued and, therefore, under Section 146 (1) he proceeded to direct the parties: to seek redress from the civil court and at the same time provided for the attachment made by him to continue in operation. Aggrieved Shukla and Murali have preferred these revisions. I have heard learned counsel for the parties.
(3.) PRELIMINARY objection was raised by Sri J. S. Sengar, counsel for Murali, to the extent that the order impugned is interlocutory and hence revision does not lie in view of section 397 (2) of the Code. I do not; find force in this contention. The order impugned may not be considered as final in the sense that it does not adjudicate or decide the rights or obligation between the parties. All the same this may not be characterised as an order passed in routine or interim or of no material consequence for that matter. The reason is that by this order the Magistrate has declined finally to decide for himself as to which of the parties was in possession on the relevant date. He has expressed inability in this behalf. The decision has been left over to the civil court instead. In the civil court the parties shall have necessarily to make out not merely actual possession obtaining on March 18, 1981, but also the right; to possess the subject matter in dispute and it is this which makes a substantial difference. Even section 146 (1) contemplates attachment of the subject of dispute until a competent court has determined the rights of the parties thereto " with regard to the person entitled to the possession thereof. If it were to be a decision by the Magistrate himself, the parties would not be required to establish their respective right or title to the subject matter of dispute. Finding on joint of possession may only have served the purpose. But the position changes materially if the matter has to be dealt with by civil court. In Indra Deo Pandey v. Smt. Bhagwati Devi, 1981 AWC 314 the Division bench dealt with a case where there was attachment under the emergency clause of section 146 (1). In that case there does not arise the question of an order made under any ofi the two remaining clauses, of Section 146 (1). It was held that the order in question therein was interlocutory against which revision did not lie. This cannot, in my opinion, be extended to a case where the order relegating the parties to the civil court is founded on the other two clauses of Section 146 (1)- The distinguishing feature is that where the attachment continues under the emergency clause of section 146 (1), the Magistrate retains the jurisdiction to proceed under Section 145 (4) but this would not be so where the order proceeds under any of the two other clauses, vide Shital Prasad Patel v. Raja Ram, 1978 AWC 665 (DB) following Shri Chandu Naik v. Sri Sitaram B. Naik (1978) I SCC 210 decided by the Supreme Court. The order as in the present falls, in my opinion, within the category of what has been described as an intermediate order in the well known case of Madhu Limaye v. State of Maharashtra, 1978 AWC 96 (SC) see also K. L. Sachdeva v. Rakesh Kumar Jain, 1983 AWC 632. Conscious as he was of the revision filed by Murali as well learned counsel did not indeed pursue this argument further. Upon merit the first question arising is whether the dispute likely to cause a breach of the peace exists concerning land within the meaning of Section 145 (1). For Shukla the contention of Sri N. C. Upadhaya, the learned counsel, is that the dispute raised is regarding the right to carry on business or to manage the petrol pump and, therefore, it is to be considered movable property. A little scrutiny into the facts relevant establishes that there is substance in this contention. The admitted facts of the case are that the land measuring 92 acre on which the petrol pump stands was obtained on registered patta dated November 3, 1977, by Shukla. He obtained a no objection certificate from the District Magistrate to set up petrol pump on this piece of land. The Tahsildar accorded approval to the patta on 27th November, 1997. It is further undisputed that the licence from the Excise Department to run the petrol pump is held by Shukla and not Murali the other party and, moreover, the Corporation appointed Shukla on January 15, 1979 as their retail out let dealer authorised as such to run and manage the pump. This was in pursuance of advertisement issued by the Corporation and followed by the holding of an interview. It is not controverted before me that the person competent to run or manage tie petrol pump is one whom the Corporation appoints as its authorised dealer. For Murali it was submitted that he constitutes a firm along with his three brothers and they have invested capital in the business. According to him, the revisionist Shukla was a mere caretaker. Shukla has averred on the contrary that Murali was an attendant and his services were dispensed with on March 17. 1931. In essence, therefore the immediate dispute, which has given rise to the apprehension of breach of peace leading to the proceeding and constitute the back bone thereof apparently is whether on the relevant date, that is, March 18, 1981, the petrol pump was run by Shukla or Murali This cannot he considered in isolation from the consideration as to which of the two is the authorised dealer for and on behalf of the Corporation. The Corporation is not bound to supply oil to one whom they have not given recognition as the retail outlet dealer. Viewed superficially it might seem that the controversy is with respect to the petrol pump embeded in the earth. But the analysis reveals beyond a room to doubt that the arena of conflict between the parties for purposes of this proceeding is confined to the right to run and manage the pump. It is in this field that they do not see; eye-to-eye with each other and it is this that had to be resolved. The central point on which the parties are in disagreement or conflict is whether the petrol pump was run by Shukla as authorised retail out let dealer or by Murali and brothers with the aid of Shukla as a mere caretaker. It is settled that the right to run a business or to manage the same is movable and not immovable property The earlier decisions, in this proceeding referred to above, concern the right claimed by the corporation as an alleged person interested. That stands negatived finally. But that does not affect adversely the ascertainment as to the nature of dispute existing between the concerned parties. The fact that the dispute relates to movable property, as explained above, is sufficient in itself to oust the jurisdiction under Section 145 (1). Section 145, it is well established, relates only to immovable property and a Magistrate has no jurisdiction to pass an order in a proceeding under that section effecting movable property even though such property, is contained in the immovable property and over it there; is also a dispute. Vide Mst. Mahdei v. Beni Prasad, AIR 1 920 Alld. 225 DB, Kanahiya v. Hari Mohan, 1973 AWR 437. In Mahmood Beg v. Ehsan Beg, AIR 1941 Oudh 515 Ghulam Hasan, J. ,as he then was) laid down that the definition of land in section 145 (2) cannot include movable property such as the stock of medicines in a shop. Reference in this connection may also be made to Addanki Narayanappa v Bhaskara Krishnappa (dead) through legal representatives, AIR. 1966 SC 1300; 1959 AP 380 (FB).;