This order will dispose of Cr. Misc. No. 167/Q of 1972 for quashment of proceedings under section 145, Cr. P. C. Initiated at the instance of Shakir Ali respondent, before Mr. Muhammad Khalil Bhatti, Assistant Commissioner, Bhakkar, Cr. Misc. No. 176/T of 1972 for transfer of the same case from his Court, and Criminal Original No. 21 of 1972 for taking action for contempt of Court against the aforementioned Assistant Commis--sioner for the alleged violation of the orders of the High Court.
2. The facts which gave rise to the petition for quashment of proceedings under section 145, Cr. P. C.
Have been given in detail in my order dated 20th of April 1972. The land in relation to which these proceedings were initiated on the application of Shakir Ali dated 5th of April 1972 who was its previous lessee, belongs to the Government. On 23rd of October 1971, the lease was auctioned for one year in favour of Bashir Ahmad, the petitioner before me. According to the Roznamcha Waqiati of the Patwari, the possession was delivered to Bashir Ahmad on 13th of November 1971. It is mentioned in that report that Allah Rakha son of Jhanda and one Asghar Ali were cultivating the land at the time of the transfer of possession. They were present when the Patwari delivered the possession, but they refused to thumb-mark the Roznamcha Waqiati. 1n the entry dated 22-10-1971 relating to Kharif 1967 in the Khasra Girdawari, Allah Rakha alone has been shown in cultivating possession of this land under Shakir Ali, but a note has been made in red ink showing that Bashir Ahmad was given possession on 13th of November 1971.
3. Shakir Ali filed a Civil Suit on 25th of October 1971, in the Court of Civil Judge, Bhakkar, against the Thai Development Authority and Bashir Ahmad petitioner asking for an injunction restraining them from interfering in his possession and cultivation. An interim stay was issued on 1st of November 1971, but was vacated on 12-11-1971 on the ground that Shakir Ali had suppressed the facts of his participation in the proceedings of the auction. The appeal against the order of the vacation of stay was dismissed by the District Judge on 20th of December 1971. The case was withdrawn with permission to file a new suit.
4. An appeal against the order dated 23rd of October 1971, granting least: to Bashir Ahmad was filed by Shakir Ali before the Commissioner which was dismissed on 18th of January 1972. Shakir Ali then moved the Board of Revenue on the revisional side alleging that he was still in possession of the land and only constructive possession had been transferred to Bashir Ahmad, the now lessee. Mr. A.
G. Raza, the Member, Board of Revenue, by order dated 15th of February 1971 directed that if Shakir Ala deposited tire amount of the rent, he shall be deemed to have been granted a stay order prayed for by him. The money was deposited by Shakir Ali but Bashir Ahmad petitioner applied to the Board of Revenue for vacation of the stay order. It was submitted by him that he had actually taken possession of the land and had sown wheat crop. The learned Member, Board of Revenue modified the stay order to the extent that whichever party was in actual possession on 15th of February 1972, will not be disturbed by the revenue authorities.
5. While this revision petition was still pending, Shakir Ali filed a complaint under section 145, Cr. P. C.
Stating that he had deposited the entire auction money by the order of the Revenue Board and was maintaining the possession of the land through his tenants, namely, Allah Rakha and Asghar Ali, He also state that he bad already filed a complaint under sections 148, 440 and 447 read with section 149, P. P. C. Against Bashir Ahmad and others. He expressed the apprehension that Bashir Ahmad and nineteen others wanted to forcibly remove the crop. The learner' Magistrate passed an order on 5th of April 1972, adjourning the case for further evidence to 7 of April 1972. On the date Asghar Ali and Allah Rakha filed affidavits stating that they were in possession of the land in question, that the revision petition filed by Shakir Ali before the Board of Revenue had been accepted but in spite of that Bashir Ahmad and others wanted to forcibly take away the crops.
The learned Magistrate without issuing notice to Bashir Ahmad passed the impugned order of the same day. I suspended the operation of the order at the preliminary hearing.
6. It is clear that the whole proceedings are vitiated by violation of imperative provisions of law on the part of the learned Magistrate and because of the factual mis-statement A contained in the affidavits filed by Shakir Ali, Allah Rakha an Asghar Ali. Under subsection (1) of section 145, Cr. P. C.
The Magistrate has to state grounds of his satisfaction that a dispute as contemplated in this section does exist and a notice to the parties has to be issued. The learned Magistrate did not pass such an order. He did not issue notice to Bashir Ahmad and simply relying on the three affidavits filed before him passed the impugned order.
7. Shakir Ali was admittedly ousted from the land in question on 13th of November 1971, and this fact was mentioned in the copy of the Khasra Girdawari attached with the application filed before the learned Magistrate. There is no mention of Asghar Ali in the revenue papers as one of his tenants.
Allah Rakha was mentioned as a tenant but he was ousted when the possession was delivered to the new lessee. If he had any rights in the land to stay on as a tenant, even under the new lessee, he did not have recourse to the proper authorities. In any case, on facts appearing on the record before the learned Magistrate Shakir Ali had been dispossessed from the land in question. The stay order granted by the Revenue Board to him, had been modified by order dated 22nd of February 1972. Shakir Ali moved this application on 5th of April 1972, when to his know--ledge the stay order in his favour had been modified and status quo had been ordered. It was a misstatement that the Revenue Board had accepted the revision.
8. The pre-condition of section W, Cr. P. C. Is that the learned Magistrate should express his satisfaction based on factual assertions made before him that there was an apprehension of breach of peace in relation to the land in dispute. Without calling upon the other party and relyingth on the affidavits placed before him-he issued a preliminary order, attaching the land in question and declaring Allah Rakha to be in possession.
9. The fate of the revision petition filed by the respondent, Shakir Ali, before the Board of Revenue is not known. If it is decided in his favour the position will be changed and effect shall` be given to the order of the Board of Revenue. There is no justification for any proceedings under section 145, Cr. P.
C. In this case because Shakir. Ali respondent had lost his possession on 13th of November 1971, and Bashir Ahmad petitioner had been lawfully put into possession of the land in dispute. The result is that the proceedings under section 145, Cr. P. C. Taken against the petitioner are quashed. The file shall be sent back to the Court concerned.
10. Since I have quashed the proceedings, no question for transfer of the case to any other Court arises. So far as the petition for contempt is concerned, I feel that the learned Magistrate put off the matter by endorsing it to the police instead of calling the parties and the police in his presence, but it is not shown that this was done with the intention of violating the orders of the High Court. I, therefore, do not feel that an action is called for even on this application.
11. The result is that the petition for quashment is allowed while the two other petitions are dismissed.