MAHESH CHANDRA SHARMA, J. - (1.) This revision petition has been filed by the petitioner Rajnikanth Agrawal, against the order dated January 21, 2009 passed by Addl. Sessions Judge Fast track No. 1 Jaipur City Jaipur in Criminal Revision No. 19 of 2009 whereby he allowed the revision petition filed by the respondents 1 and 2 against the order dated December 12, 2008 of Addl. District Magistrate Jaipur City (South) Jaipur in case No. 5 of 2008 under Section 145 Cr.P.C.
(2.) Brief facts of the case are that on October 21, 2008, the petitioner lodged an FIR at Police Station Jawahar Circle Jaipur, which was registered as FIR No. 115 of 2008 against the non-petitioners 1 and 2. The SHO Police Station Jawahar Circle sought information from the Jaipur Development Authority regarding title of the plots in question for which FIR was filed. The Dy. Commissioner of Zone IV in the JDA vide his letter dated November 7, 2008 informed that the plots No. 80, 81 and 82 are in the names of Shri Dharmendra Gupta, Vikas Khetan and Sanjay Agrawal. Brother of non-petitioner No. 2,Badri Prasad, was an MLA and therefore under his influence the non-petitioners land 2 tried to encroach upon the plots of the petitioner and they damaged the boundary wall of the plots. The non-petitioners 1 and 2 are running a School nearby the plots of the petitioner and they tried to assault the petitioner on November 12, 2008. The matter was reported to the SHO Police Station Jawahar Circle. Thereafter the SHO PS Jawahar Circle filed a complaint under Section 145 Cr.P.C. On December 15, 2008 and reported the matter to the ADM If Jaipur City, Jaipur stating therein that party No. 1 i.e. the petitioner lodged FIR No. 115 of 2008 under Section 448 IPC on October 21, 2008 stating therein that they are the plot owners of plots No. 80, 81 and 82. When the petitioner went to their plots, he came to know that Sri Badri Prasad Meena, non- petitioner No. 2 and his wife Gopali Devi Meena non-petitioner No. 1 have written the names of their School on the boundary wall of the plots of the petitioner. When the petitioner tried to stop them from writing the name of the school on the boundary wall, the threatened to murder the petitioner. It was reported that Shri Badri Prasad Meena and Smt. Gopali Devi Meena have damaged the boundary wall of these plots and hence, there is a strong apprehension of breach of peace, therefore proceedings under section 145 Cr.P.C. be initiated and a Receiver be appointed on the plots in question. Since there was a strong apprehension of breach of peace and on the basis of the complaint filed by the SHO, the ADM passed an order on December 16, 2008 under Section 145 Cr.P.C. and the plots in question have been attached and the Tehsildar Sanganer was appointed as Receiver on the plots No. 80, 81 and 82. Since again there was a strong apprehension that the Non-petitioners 1 and 2 will again encroach upon the plots, the petitioner prayed that fencing be done on the plots for the security of the plots. The SDM vide order dated December 31, 2008 allowed the petition filed by the petitioner and it was ordered that the Tehsildar Sanganer will do the fencing on the plots at the expenditure of the petitioner. Aggrieved against the order dated December 16, 2008, the non-petitioners 1 and 2 filed revision petition before the Sessions Judge Jaipur City Jaipur which was subsequently transferred to the Court of Addl. Sessions Judge Fast Track No. 1 Jaipur City, Jaipur. The Additional Sessions Judge vide order dated January 21, 2009 allowed the revision petition filed by the non-petitioners and quashed the order of the SDM dated December 16, 2008 appointing receiver. Aggrieved against the order of the Additional Sessions Judge, allowing the revision petition of the non-petitioner, the petitioner has filed the present revision petition.
(3.) Mr. S.S. Hasan, learned counsel for the petitioner submitted following submissions: (a) It is an admitted fact that the petitioner is the title holder of the plots in question. These plots were allotted by the Society to the petitioner in the year 1999. Subsequently 90 B proceedings were initiated in the year 2001 and in the JDA records, the petitioner is the titled holder of the plots in question. (b) There was a strong apprehension of breach of law and order. There was a dispute of possession, therefore, the ADM has initiated proceedings u/S. 145 Cr.P.C. and the plots in question have been attached u/S. 146(1) Cr.P.C. It was submitted that the petitioner is in possession of the plots but since respondents land 2 are residing nearby the plots in question, therefore only to encroach upon the plots of the petitioner, they damaged the boundary wall of the plots of the petitioner. Therefore the petitioner lodged an FIR at PS Jawahar Circle Jaipur, wherein proceedings u/S. 107 and 116 Cr.P.C. have been initiated against the respondents to bound down them. The SHO Jawahr Circle filed complaint u/S. 145 Cr.P.C. before the ADM and ADM rightly passed order of attachment taking into consideration that there was strong apprehension of breach of peace. (c) Without holding any enquiry the Additional Sessions Judge held that the respondents land 2 are in possession of the plots in question. The enquiry has to be conducted by the ADM. The case is pending and no final order was passed by the ADM. Only the ADM can pass an order on the issue of possession after taking evidence of both the parties. The Additional Sessions Judge assumed the powers of the ADM and held that the respondents 1 and 2 are in possession of the plots and that too without holding any enquiry. (d) The respondents 1 and 2 have alleged in the revision petition that they are running the School in the name of Navodya Public School and they are in possession of the plots in question. It is absolutely false on the part of the respondents 1 and 2 submit that they are the title and possession holders of the plots in question. It is true that they are running the school in the name of Navodya Public School, but the school is on plot No. A25-26, Mother Teressa Nagar Malviya Nagar and not on the plots of the petitioner. (e) In the complaint it has been specifically mentioned that there is a prima facie evidence that in relation to the possession of the plots in question, there is likelihood of breach of peace and hence in case if the property is attached, it would result in eminent danger of peace. It was a case of emergency in nature and therefore looking to the facts and material available on record the ADM rightly passed the order on 16.12.2008.;