J&K High Court Quashes Magistrate’s Land Attachment Order | Finds Violation Of Section 145 CrPC Procedure | Rules Possession Cannot Be Handed Over Without Following Due Process
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Vinod Chatterji Koul has set aside an order issued by the Additional District Magistrate, Kupwara, involving the attachment of a disputed property. The court held that the order had been issued in violation of the procedural requirements stipulated under Sections 145(1) and 146(1) of the Criminal Procedure Code (Cr.P.C.). The High Court directed that the matter be remanded back to the Additional District Magistrate for reconsideration strictly in accordance with law.
The court declared that the impugned order "has been passed in breach of both the provisions of law" and consequently, "such order cannot sustain." Accordingly, the High Court quashed the attachment order and directed the parties to appear before the Additional District Magistrate, Kupwara, on a specified date. The case was disposed of with these directions, with no further proceedings continued in the High Court.
The matter arose from an order dated 20.10.2022 issued by the Additional District Magistrate, Kupwara. The said order was passed on the basis of a report from the Tehsildar, Trehgam, and involved the attachment of disputed land.
The order stated: "In view of the report of Tehsildar, parties were called and heard at length and the behaviour of parties prime facia depicts that the parties may create law and order problem on spot. I am of considered opinion and have drawn personal satisfaction as Additional District Magistrate, Kupwara to the extent that there is every apprehension of breach of peace between the parties concerning disputed land, as such the disputed property is hereby attached till further orders."
It further directed the Tehsildar, Trehgam/Executive Magistrate (First Class), to take possession of the disputed property and to hand it over to some respectable persons of the locality. The parties were asked to present their claims before the office on 28.10.2022 for inquiry under Section 145 of Cr.P.C.
The petitioner challenged this order on the ground that it was not passed in accordance with the procedures mandated under Section 145 of the Cr.P.C. The petitioner asserted that the Additional District Magistrate had not followed the essential steps required under the law, such as making an order in writing, stating the grounds of satisfaction, and requiring parties to attend court and file written statements regarding possession.
The impugned order was based on a report from the Tehsildar, Trehgam, who had earlier taken possession of the land and handed it over to the local Lumberdar and Sarpanch, citing apprehension of breach of peace. The Tehsildar had recommended that this action be confirmed under Section 145 of the Cr.P.C.
Before issuing the impugned order, the Additional District Magistrate had forwarded the petition to the Tehsildar, Trehgam for necessary action. In response, the Tehsildar had taken possession and handed it to community representatives and sought confirmation of this action.
The court examined the procedure outlined in Section 145(1) of Cr.P.C., which states: "Whether on Executive Magistrate is satisfy from the report of a police officer or upon the information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the ground of his being satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time and to put in written statements of their respective claims as respects the facts of actual possession of the subject of dispute."
The petitioner argued that none of these procedural requirements had been fulfilled. The order had been issued without first making the requisite inquiry or recording the grounds for satisfaction in the manner required by law.
The Tehsildar's report noted that due to the nature of the dispute and in the interest of maintaining law and order, the land was handed over to the Lumberdar and Sarpanch, and that the attachment of the land be confirmed under Section 145.
The court noted that the Additional District Magistrate accepted this action and recorded in the impugned order that there was apprehension of breach of peace. The court found that the attachment of property could not have been ordered under Section 145(1) of Cr.P.C., as had been done, but only under Section 146(1) in specific circumstances.
The court extensively quoted the provisions of the law and made several key observations. It stated: "As is clear from the provisions contained in Section 145 (1) of Cr.P.C., Executive Magistrate must record satisfaction that a dispute likely to cause breach of peace exists concerning any land or water or boundaries thereof within local jurisdiction and then he shall make an order in writing in which he would record the grounds of his being satisfied and after recording the same should require the parties concerned in such dispute to attend the court in person or by pleader on a specified date and time and to put written statements of their respective claims in respect of the fact of actual possession of the subject dispute."
The court also stated: "Order impugned would reveal that it has not been passed in conformity with Section 145(1) Cr.P.C."
It went on to analyse the role of the Tehsildar:"The property in question as would appear from the first part of the order impugned had been handed over to Lumberdar and Sarpanch by Tehsildar, Trehgam, who has also reported that nature of the dispute is such that the land had been handed over to Lumberdar and Sarpanch to maintain law and order."
Concerning the powers under Section 146, the court noted: "Order of attachment could be passed under Section 146 of Cr.P.C. and not under Section 145 (1) of Cr. P. C."
It quoted Section 146(1) in full and noted the conditions under which such power may be exercised, such as in cases of emergency or where possession cannot be determined.
The judgment concluded:"It appears from the reading of order impugned while taking into notice of the provisions contained in Section 145(1) and 146(1) Cr.P.C. that it has been passed in breach of both the provisions of law, therefore, such order cannot sustain."
The High Court issued the following directions: "Order impugned is, accordingly, set aside."
The court then remanded the matter back for fresh proceedings: "The matter is remanded back to Additional District Magistrate, Kupwara, who shall, after carefully going through the provisions as contained under Section 145 and 146 of Cr.P.C., proceed in the matter in accordance with law."
The court also disposed of the petition: "Petition is disposed of along with the connected Crl M(s)."
Finally, it directed the parties to appear before the concerned authority: "Parties to cause their appearance before Additional District Magistrate, Kupwara on 18.03.2025."
Advocates Representing the Parties:
For the Petitioners: Mr. T. A. Lone, Advocate
For the Respondents: Mr. Sheikh Manzoor, Advocate
Case Title: Mohammad Akbar Sheikh vs. MST Jana and Ors
Case Number: CRM(M) 67/2023
Bench: Justice Vinod Chatterji Koul
