JUDGMENT
V.S. Kotwal, J.
1. The facts, though simple, are rather surprising while the report of the Police Sub-Inspector, which appears to be the premise for the further order is disturbing and even the order passed by the learned Executive Magistrate is extremely disquieting and in between, there are several circumstances, which carry with them a tinge indicating that every thing is not above board in this entire proceeding and the most surprising and almost shocking feature is that by one stroke of pen largo area to the extent of roughly 170 acres have been attached and places in charge of the Receiver depriving the land-holders to cultivate and derive rightful benefit thereunder.
2. The episode starts in the month of June 1979. The lands are situate within the limits of Kalala Village in Biloli Taluka of Nanded District. It comprises of several survey number which have been transformed into gut numbers. The parties, though fortunately are educated, some of whom having been well placed in life have unfortunately indulged in bickering which had benefited none and destroyed the inteset of all. In June 1979, one Shankarrao Pralhadrao Deshmukh, respondent No. 2 herein, filed an application with the Police Sub-Inspector, attached to Police Station at Kuntur in Nanded district, making a grievance that he owns the land being Gut No. 182 and the in the capacity of the owner it is in his possession and under his cultivation. According to his grievance, the first two petitioners with petitioner No. 4 and the sons of some of the petitioners have started causing disturbance in the lawful enjoyment and cultivation of land by him. He further asserted that Gut No. 272 stands to the share of his mother and is in possession, though it is under his cultivation since he is holding the power of attorney executed by his mother. He has further made a grievance that the petitioners and their relations had threatened him with the sole object of desisting him from cultivating the land. He apprehended danger to his life and, therefore, requested the Police Sub-inspector to take cognizance of this matter and do the needful.
3. On the basis of this application the Police Sub-Inspector started acting very swiftly. He deputed a police head constable attached to the said Police Station to enquire into the matter and submitted a report. Accordingly hardly with a span of about one week the said Police Head Constable recorded the statements of the three of the petitioners, two respondents and three servants of the respondents and in fact this is all the enquiry held and conducted by the police machinery. In the meantime a grievance was made on behalf of the petitioners with the Superintendent of police at Nanded that almost a partial and bias enquiry was being conducted by the head constable. The Superintendent of police, therefore, was satisfied with the said grievance and directed the withdrawal of the enquiry from the said head constable and further directed the Police Sub-Inspector to himself conduct the enquiry. It is, further important to note at this juncture itself that by the time this order was passed on 14th June, 1979, the so called enquiry was concluded and on that basis the Police Sub Inspector forwarded his report to the Executive Magistrate at Biloli on July 9th, 1979. He contended therein that there appears to be a dispute between the parties who are near relations and it appears that there was an apparent discrepancy between the entries in the revenue record and the actual cultivation by the parties. He also felt that there was likelihood of breach of public peace and as such it was necessary to take action under section 145 of the Code of Criminal Procedure.
3-A. On the receipt of this report, the Executive Magistrate, Biloli was pleased to pass an order on 24th July, 1979, directing taking over of the land under Government supervision with the standing crops, if any and the Circle Inspector of that division was appointed as a receiver with the further direction to put the land to auction for one year as per the rules. I may have an occasion to refer to this report in view of the serious allegations made by the petitioners. It is suffice, however, to observe at this juncture itself that this order was passed without issuing any notice to the petitioners and presumably feeling the existence of emergency, though the said aspect of satisfaction of the Executive Magistrate is apparently open to a grave doubt and even surprise.
4. Then we have another interesting phase in this matter, and the another round of events unmistakably indicating that everyone was anxious to act very swiftly right from the Police Officer upto the Executive Magistrate and the Circle Inspector did not lag behind, as he contributed his own share. The record reveals that on 13th July, 1979, the Executive Magistrate felt necessity of correcting his order as some of the gut numbers were wrongly mentioned and that is how in reality the order came to be finally passed presumably under section 146 of the Code of Criminal Procedure along with the preliminary order under section 145(1) of the Code of Criminal Procedure on the 30th July, 1979. Then it is apparent from the record that the Circle Inspector was so prompt that when this order was passed on 30th July, 1979, he tried to hold an auction on the 1st of August i.e. on the next day and in fact one gut number was practically knocked down. However, that could not be materialised and finalised for certain reasons and, therefore, it was postponed to 9th of August, 1979 on which day all the lands were auctioned. We have almost another shocking feature that the amount knocked down was a fabulous amount of Rs. 4,900/- for the entire area of about 170 acres or so and further surprising feature is that in that year this land was taken under auction and was cultivated by no other person that practically an agent of respondent No. 1 and this, in my opinion, again strongly indicate a very suspicion feature in this episode when I will have an occasion to offer my comments in that behalf. It is also clear from the record that on 30th July, 1979 itself some of the petitioners were physically present in the office of the Executive Magistrate and tendered an application requesting the officer to hear them before passing the order and the learned Executive Magistrate either had no time to hear them or felt that herein was not necessary at all, little realising that by one stroke of pen he was depriving the land holders of the land to the extent of about 170 acres, which was being auctioned at a throw away price.
5. After this swiftness in the action hardly within a few days there was interestingly a corresponding lethargy thereafter and the reasons not far to seek as the respondent were in a happy position depriving the petitioners of the lands and practically they cultivated lands at the ridiculously low price. There was a repeat performance of this phenomena in the next year i.e. in the year 1980-81 and the record reveals that in that auction also the person interested in the first respondent was too anxious to take the land on one year basis for cultivation. Even though such drastic steps were taken so swiftly, the Executive Magistrate had no time to deal with the main petition under section 145 of the Code of Criminal Procedure and that was practically kept in cold storage.
6. It so happened that the petitioners were ultimately obliged to move this Court under writ jurisdiction by filing Writ Petition No. 175 of 1980 on February 4, 1980 asking for quashing of the proceeding including release of attachment. This Court, however, felt that since the proceeding has already been commenced, same can be disposed of within a reasonable time, so that if the main petition is disposed of nothing else would survive. This Court, therefore, directed the Executive Magistrate to dispose of the main petition preferably within a period of two months. In this view of the development and the directions issued by this Court, the said writ petition was allowed to be withdrawn by the petitioner, though a specified liberty was granted to them to move this Court again if needed. That need obviously arose in view of the utter in action on the part of the Executive Magistrate and this is another shocking feature in this proceeding that the orders of this Court are sought to be flouted under untenable pretext and the reasons behind this is not far to seek.
7. The petitioners appeared before the Executive Magistrate and tendered their written statement. By that time the proceeding was transferred to the file of the Executive Magistrate at Degloor and it is pending there for quite some time. Having realised that respondent were in happy position cultivating the lands practically by themselves and having also realised that only the petitioners are put to loss and having further realised that the main petition is not being touched, the petitioners had no alternative but to move this Court under the liberty granted in the earlier proceeding and that is how the present petition has been filed on behalf of the petitioners.
8. It is important to note that this petition was admitted in September 1980 and the respondents have been duly served long back, yet a complete indifference has been shown by the respondents either to controvert the contentions of the petitioners by affidavits or to file any documents and this will have same impact in resolving the controversy.
9. A brief resume of the events is inevitable to understand the controversy. The first two petitioner and the first two respondents are the brothers. Petitioners No. 3 is son of the first petitioner. The joint family was owning agricultural lands at the said village, though the properties were divided under a partition. In the year 1974 a scheme under Consolidation of Fragmentation on Holdings Act came to be applied to the said village and under that scheme the properties had to be readjusted or reallocated. This was, however, done amicably and with the consent of the parties. Petitioner No. 2 and the first respondent were at the relevant time in the Government service while the second respondent was serving as lecturer in a college and, therefore, as they were away from the village for quite some time the property was actually managed, controlled and cultivated under the supervision of their father. A document is the shape of an arrangement or arrangement was also executed voluntarily by the parties exhibiting their share to the various lands. By the said agreement, different lands were allotted to the petitioners and respondents, which are detailed in the petition. All the concerned parties were actually put in possession of the land allotted to them. This adjustment, however, was acted after the sowing season was over the in the year 1978 and, therefore, the lands could not be formally mutated in the names of the respective parties for that year. It is thereafter that in June 1979 the second respondent moved the police with the application and that is how the proceeding under section 145 was initiated and which culminated atleast for the time being in passing an order of attachment on 24th and 30th July, 1979 with the resultant consequence of putting the lands to auction for two agricultural seasons i.e. years 1979-80 and 1980-81. This in short is the resume of the events.
10. Shri Deo, the learned Counsel for the petitioners, has made several grievances with multifarious reasons and I am tempted to observe that on merits each of his grievance appears to be justified and I am really constrained to observe that practically each of the authority either entrusted with or being in any way concerned and associated with this proceeding has forfeited his claim not to have acted in on objectionable manner and this is well borne out not only inferentially but by chapter and verse in this proceeding and further disquieting features is that even this Court’s orders have been completely flouted with absolutely no justification and the course of event unmistakably establishes that the first respondent is very much interested in grabbing the property and has managed the whole show and the learned Counsel’s contention in that behalf cannot be said to be unjustified.
11. To start with, an application of respondent No. 2 filed in the month of June 1979 significantly restricts itself to only two Gut numbers, viz. 182 and 273. He claims that Gut No. 182 is allotted to him and is in occupation thereof while Gut No. 273 has gone to the share of his mother and it is under his cultivation as he is holding the power of attorney for the mother. Now, the striking feature is that there is not even a whisper in this application making even inferential grievance in respect of other survey numbers or Gut this numbers. This is the first infirmity in this application. Second grievance in this application is to the effect that the petitioners and their sons are causing disturbance to his occupancy rights vis-a-vis the two gut numbers and he had made request to the Police Sub-Inspector to remove the said disturbance. This, as rightly submitted by Shri Deo, hardly spells out any ground for initiating a proceeding under section 145 of the Code of Criminal Procedure. It is true that it is indicated therein that he was threatened to death and the further allegations are that the petitioners indicated that they may commit suicide and put the blame at his doors. This on the face of it is too tall a claim to be accepted and apart from this it is more vague than tenable. In my opinion, therefore, the very basis of this entire proceeding is so completely battle that it did not warrant any action in initiating the proceeding under section 145 of the Code of Criminal Procedure.
12. From this moment starts the chain of disturbing features. The Police Sub Inspector directed the police head constables to make enquiry and I am again constrained to observe that the said enquiry has been made in the most perfunctory manner. The said head constable examined all the four petitioners and respondent No. 2, who is no other than the applicant himself. All the petitioners had denied the allegations while respondent No. 2 reiterated all the contentions which he had embodied in the application. Significantly respondent No. 1 has not been examined and I will presently point out that Shri Deo is justified in submitting that the master mind behind the whole show has got himself away in the back ground and has practically made others to dance to his tune. The three servants of the respondent are Khandu, Kondiba and Vithal. According to Khandu he was serving with the first respondent. On one occasion four petitioners went to the land and asked him not to plough it and four days thereafter he along with others threatened him. He conveyed it to his master i.e. the first respondent. The master, however, did not take it seriously and it is interesting to note that according to this witness, the first respondent blamed him saying that the third petitioner Pradeep was one of the members of the family and his conduct should be ignored. There was no untoward incident thereafter. This statement, taken even at the maximum, hardly creates justification in support of P.S.I.’s report.
13. Kondiba is in service of respondent No. 2. According to him, some of the petitioners have gone to Gut No. 182 and asked them not to plough it as it has been allotted to their share. He also informed the second respondent-nowhere, who equally ignored the matter and did not proceed further. This statement is also as vague as could be. No dates are given nor any particulars are made. The last witness Vithal is also in the employment of respondent No. 2 and according to him only once some of the petitioners had obstructed him in Gut No. 182, contending that Gut No. 182 has been allotted to their share.
14. This is all the material collected by the head-constable and which was placed before the Police Sub Inspector, on the basis of which latter forwarded the report on the 9th July, 1979. Now this report also makes an interesting feature. As stated earlier not only the application of the second respondent but even the statements of all the three witnesses restricted themselves only to Gut No. 182 and Gut No. 273 and had not referred to even inferentially in respect of other gut numbers. No other material was placed before the Police Sub Inspector and even then we find that his report relate to all the gut numbers and on the final analysis he was bold enough to inform the Executive Magistrate that there is a dispute in respect of all the gut numbers between the brothers which was likely to disturb public peace. This itself is rather unacceptable for obvious reasons. This apart, the report is also vague in material particulars. He says that both the parties and educated and he further asserts that the sowing operation in all the land was conduct by both the parties jointly, though it was not so mentioned in the 7/12 extracts. He has further stated that though the second respondent contended that Gut No. 182 was in his possession, yet the revenue record indicates that it was actually in occupation of the first two petitioners, which by itself supports the contention of the petitioners. Police Sub Inspector then asserted that the parties appear to be quarrelling amongst each other and it was uncertain as to when there may arise breach of peace and according to him, there is no clear cut evidence about the holding of each share. He, therefore, requested the Executive Magistrate to initiate the proceedings under section 145 of the Code of Criminal Procedure.
15. Shri Deo, the learned Counsel for the petitioners, is justified in criticising this report either. According to the learned Counsel, in the first instance there was no material for him to travel beyond the grievance made by second respondent in his application as well as in his statement before the head constable. Secondly, even the three servants of the respondents have not referred to any other gut. The petitioners had denied the allegations. The resultant effect, therefore, is that there was not even an iota of allegations before the P.S.I. that there was any dispute vis-a-vis., the other gut number so much so that it was likely to culminate into breach of peach and tranquillity and secondly merely borrowing the phraseology from the Code, the P.S.I. has not described in the report as to on what basis he could apprehend the breach of peace. No instance are quoted and further surprising feature is that no one from the vicinity or from the village has been examined by the head constable and for which there is absolutely no explanation tendered by the P.S.I. In my opinion, therefore Shri Deo is justified in submitting that this report itself is extremely artificial and mechanical without application of mind and apart from that on merits it has no foundation. Consequently a further premises for initiating the proceeding has got to be discarded as no proper case has been made out. This by itself cannot be said to be an unjustified submission.
16. Annexed to this aspect is another disturbing situation. When the petitioners were contacted by the head constable in the month of June itself, they realised for the first time about the existence of enquiry and they also realised that the statements are being moulded by the Police Head Constable according to the needs of the respondent. They, therefore, moved the District Superintendent of Police, Nanded, and the said officer was prima facie satisfied with the grievance and on 14th June, 1979 he passed a specific order withdrawing the enquiry from the head constable and directing the P.S.I. to conduct the enquiry himself. This was communicated to P.S.I. immediately and the record reveals that the P.S.I. either had no time or did not feel it necessary to have a fresh or further enquiry by himself and also did not realise the paucity of the material so far collected by the head constable. The maximum that was done by the P.S.I. was to sent his own report dated 9th July, 1979 exclusively based on the material collected by the head constables. The matter does not rest there because an endorsement of dubious character has been scribed by the P.S.I. on his report to the effect that he himself had personally conducted the enquiry and was satisfied about the truthfulness of the material and it is thereafter that he made the report. Now the record is, however, clear that he himself had never contacted the witnesses nor the statement were verified and this Sub-Inspector wants us to seriously believe his claim that he himself conducted the enquiry, which claim for obvious reasons is not only misleading but is far away from an honest claim and it is equally surprising to note that the Executive Magistrate did not bother to verify the correctness of this endorsement.
17. Upto this we had only the respondent, a Police Head Constable and the Sub-Inspector of Police in the picture. At that moment, the Executive Magistrate entered the arena and he has conducted himself in every objectionable manner. After the receipt of this report on 10th July, 1979 he claims to have passed an order on 24th July, 1979, which reads as :—
“Register the case. Issue orders to R.I. Kuntur to take the said land under Government supervision with standing crops, if any, and lease on Eksal basis as ………”.
This order was corrected on 30th July, 1979 as there was some mistake in mentioning the gut numbers. Now this order is open to exception for more than one reason. In the first instance, it is important to note that the report made by the Sub Inspector and material collected by the Sub Inspector and placed before the Executive Magistrate did not make out even by any yardstick a case of emergency and even then the Executive Magistrate felt that urgent action pertaining to 170 acres was absolutely essential or otherwise it would have entailed into breach of peace. He did not fee it necessary to issue notices to the parties and the further important feature is that even though the report was received on 10th July, 1979, the order was passed on 24th July, 1979 and corrected on 30th July, meaning thereby that the situation was such that it was not so explosive and it could wait atleast for some days before the final order was passed. In my opinion, that itself is a ground for destroying the existence of emergency and apart from this on merits there is absolutely not even semblance of situation of emergency. The Sub Inspector himself says that the parties are educated. It is true that to attract the provisions of section 146 of the Code of Criminal Procedure the actual confrontation of parties, going to the blows is not necessary. However, even then for a subjective satisfaction there should be rational material and this is utterly lacking in the instant case. In his order, which is scribed separately the learned Magistrate has again borrowed the phraseology from the Code, saying that he was satisfied from the report of the Sub Inspector that it was a case of emergency and breach of peace would take place if the lands are not attached. There is not even an iota of reasoning contained in the said order and even assuming that this is not a serious lapse, yet inferentially there is also no indication which would justify the satisfaction of the learned Magistrate. If the report of the Sub-Inspector is the only basis then that contains several deficiencies. It is also important to note that the maximum that can be said only pertain to two gut numbers and in respect of other gut numbers there was nothing absolutely much less any allegations and it is not understood on what basis the Sub Inspector could communicate to the Magistrate vis-a-vis other gut numbers. It is well settled that an order under section 146 of the Code for attachment of property should not be lightly made, and there should be indication that there was enough justification for arriving at satisfaction about the existence of emergency. Shri Deo the learned Counsel, also rightly submits that one of the petitioners is serving as a teacher while the other is medical representative and one is Block Development Officer all being practically away from the village. While both the respondents are away from the village. This is conceded by the other side and is also a matter of record. Shri Deo, therefore, submits that in the nature of things there was absolutely no scope even for a semblance of apprehension much less about the emergency vis-a-vis the concept of breach of peace. This is also ignored by the Executive Magistrate, who has practically surrendered his judgment to the P.S.I. who in turn has surrendered to the judgment of the Police Head-Constable and that is how the circuit completes.
18. The matter does not rest there as there is yet another discrepancy. The report of the P.S.I. on which the endorsement was made by the learned Executive Magistrate on 24th July also contained another endorsement which was obviously made earlier and curiously enough which has been scored presumably by the learned Magistrate himself, though unfortunately for him the endorsement is clearly legible and it reads as :—
“Issue show cause notice to the concerned parties to show cause why the land in dispute should not be taken in Government supervision….Register the case……”.
19. It is rightly said that the truth has a very powerful edge and sometime it slips out of one’s hand and takes a serious turn and this is exactly what has happened in the instant case. The learned Executive Magistrate at the first instance on reading the report of the P.S.I. was satisfied that it was not a case of emergency and felt necessity to issue the show cause notice and made an endorsement and something occurred thereafter which was enough to persuade him to score out that endorsement and to substitute it by the one which is already referred to above and diagonally an opposite stand was taken, in that in the first instance he thought of issuing the notice while on the second instance he thought of attaching 170 acres of land by one stroke of pen, hardly in a moment. In my opinion the facts are so squarely evident causing a grave suspicion in respect of these aspects for one requires hardly any further probe to understand and to apprehend what really might have occurred.
20. Then it is on record that the order was actually corrected and passed on 30th July and it is equally a matter of record that on that day some of the petitioners were physically present before the Executive Magistrate and gave an application that they should be heard before passing an order of attachment. The learned Executive Magistrate could find time to wait upto 30th July, 1979 though the police report was received on 10th July and yet he did not find even a moment’s time to wait and hear the parties, who were physically present before him when the final order was passed on 30th July. Shri Deo is justified in criticising this conduct on the part of the learned Executive Magistrate and I must express my disapproval in the manner in which this officer has conducted himself. He ought to have realised, under the circumstances, that even at the maximum no case for emergency was made out and it is too elementary to observe that when such a drastic step of attaching 170 acres of valuable lands, some of which are irrigated lands is being taken the officer should have applied his mind with more than normal caution and should have been slow to pass the said order and at any rate when his working of mind was reflected in the first endorsement and parties were before him to agitate and ventilate their grievances, the interest of justice demanded that he could have postponed the passing of the order by few hours when it was already postponed for few days.
21. Thereafter entered into the arena the lower authorities viz., the Circle Inspector and Talathi and they have also contributed their share to this alarming situation. The order was passed on 30th July at Biloli. The Circle Inspector stays at Kuntur which is separated by about 45 Kilometers from Biloli and in rainy season there is no motorable road. Therefore, even making the maximum allowance and having regard to the present condition, it was physically impossible for the Circle Inspector first to get a communication from the learned Executive Magistrate and secondly to be physically present in the village on the 30th July. This assumes importance inasmuch as there was a report from the Talathi addressed to the Tahsildar wherein it is indicated that he along with the Circle Inspector had gone to the village in question on the 30th July itself and had tried to take possession of the property as per the orders when they were physically obstructed by some of the petitioners and, therefore, they had not abandon their mission. Shri Deo is justified in submitting that this was a practically and physically impossible situation, for the two officers to know the order on the same day and to go to the village in question on the same day and try to take possession and this report is obviously made to prejudice the case of the petitioners by making a false allegation that they had been obstructed in taking the possession.
22. Then we have other aspect. According to the evidence, the lands were taken in charge by the Circle Inspector in the presence of the panch witnesses. Now the surprising feature is that no timings are mentioned in the document and Shri Deo is further justified in submitting that even making allowance on the time element, yet it was physically impossible for these officers to visit each of the sites, observing the details and to take formal possession even within such a short span of time. This again itself sounds highly suspicious.
23. Then we have an event of 1st August when an attempt to put the land in auction was made. One land initially was put to auction and there was one bidder, who had offered highest price to the tune of Rs. 4100/- which was restricted to only one gut number i.e. Gut No. 5. Now it is apparent from the record that not only the petitioners but even the villagers were requesting the Circle Inspector to postpone the holding of auction as there was not enough time to make arrangement and not much publicity was given as notice was put up in the said Gram panchayat Officer for the first time on the 31st July and people also could not arrange for the offset money. The said bid also could not be finalised as the bidder had no money in his possession. It is thereafter that the auction was postponed to 9th August, 1979 when all the lands were put to auction and when we have a very disturbing situation in that behalf.
24. As regards one gut number viz. Gut No. 5 auction fetched the price of Rs. 4100/- and in respect of auction of practically all the gut numbers admeasuring 170 acres it fetched the total price of Rs. 4900/- when the auction was knocked down on the 9th August. This itself is extremely suspicious and unacceptable. Some of the lands are irrigated lands. The names of auction purchasers for the year 1979-80 are very important. The record reveals that some portion of the land was taken by one Madhavrao Krishna while the 125 acres were taken by Bapurao Vithalrao. Now, the significance lies in the fact that the said Madhavrao was serving as a compounder with the first respondent in his private dispensary and it was the first respondent, who had recommended him to the Municipal Council at Nanded for being absorbed as vaccinator in the Municipal Council. The second purchaser Bapurao Vithalrao was actually serving as a compounder of the first respondent. Shri Deo is thoroughly justified in submitting that all these events indicate that the first respondent was managing the whole show and was interested in depriving the petitioners of their valuable lands and cultivating the lands by himself though on paper through others. Apart from the adequacy of the price, the auction purchasers also figured prominently showing direct nexus with the respondents. For the year 1980-81 Bapurao Vithalrao and two others were the auction purchasers whereas Bapurao has purchased more than 125 acres of land. The net result is that for both the years the lands were practically in possession and occupation as well as cultivation of respondent No. 1, though may be Benami in nature. Shri Deo is equally justified in making a reference to the fact that though one of the petitioners and arranged for the pipe line through his land being Gut No. 5, significantly no reference finds place in the panchanama which is again relevant by itself, and he has to be the sufferer as he was being showered by notices from the M.S.E.B. and thus he was put to loss without getting the land in his possession.
25. It is also important to note that the petitioners had moved the District Magistrate at Nanded, making a grievance against the said Executive Magistrate and their grievance was found to be justified and proceeding was, therefore, transferred to the Sub-Divisional Magistrate at Digloor. This again has its own relevance and impact.
26. Then we have the last phase when this Court had directed the Sub-Divisional Magistrate, Digloor to conduct and conclude the case preferably within the span of two months, the user of word “preferably” has been stretched too far having regard to the elasticity of the said word and I am surprised to note that till the moment the record was called by this Court in this proceeding, which was obviously after September, 1980, no progress was made, though the order was passed by this Court on 27th February, 1980. The record indicates that some of the notices had been returned unserved. These notices pertain to the petitioners and the learned Counsel Shri Deo justifiably submits that this is yet another device to prolong the proceeding. Thus one of the petitioners is serving as Block Development Officer at Hatgaon in the same district, though his notice was sent to Kuntur Police Station for service and though an endorsement therein suggests that the police knew that he was serving as the Block Development Officer, yet it was treated as unserved without any efforts being made to forward that notice to his residential address which was mentioned by the Police Officers themselves. However, thereafter the petitioners had appeared and in fact filed their written statement and the proceeding is ready for hearing and final disposal and yet unfortunately final order is not passed inspite of the order of this Court and this state of affairs is being strongly disapproved in view of the specified directions issued by this Court and in the face of utter indifference that is exhibited by the officers concerned.
27. Having regard to all these features I am of the firm opinion that the drastic order purporting to be passed under section 146 of the Code attaching the property is manifestly unjustified and untenable as also illegal and, therefore, deserves to be set aside forthwith. There is absolutely no situation of emergency and the officer at every quarter appears to be anxious to make such situation. The order is manifestly unjustified even on the ground of equity and no cause has been made out for a breach of public peace and tranquillity. The vast acreage is attached and is being auctioned at a throw-away price by one stroke of pen and the surprise gets more aggravated form when one finds utter and undue indifference and it gets further aggravated shade when one finds that at every stage and at every quarter the action is shrowded in mystery and everything is no above board.
28. As regards the main proceeding under section 145 of the Code of Criminal Procedure, a difficulty is apparent in view of certain developments. The proceeding was initiated in the year 1979 and the preliminary order is passed on 24th July, 1979 while P.S.I.’ report is in between i.e. 9th July 1979. Thereafter the petitioners had moved this Court when this Court declined to pass an order quashing the proceeding and the petition was withdrawn though it is equally true that there was some reason for such a withdrawal as this Court as well as the petitioners felt that the main proceeding can be disposed of within two months, so that nothing could survive and that is how the withdrawal was allowed. Every one felt that order would be implemented properly and faithfully. However, the result is far away from such an expectation. In addition thereto we find that the petitioners had appeared sou motu and had tendered their written statement, though they contended that the proceeding has been initiated falsely and is not maintainable in law as also on facts. Having regard to all these features and having regard to the fact that the preliminary order was passed long back, it may not be a proper exercise of discretion of this Court while dealing with a petition under section 482 of the Code to quash the main proceeding itself at this length of time. It will also be in consonance with the order passed by this Court earlier though the impugned order of attachment presumably under section 146 of the Code will have to be struck down as being manifestly untenable, and almost glaringly shocking. The parties have no serious objection in that behalf, though it is made clear that the petitioners, however, ultimately contend that the proceeding is not bona fide and is also not maintainable and, therefore, it would be a proper exercise of discretion not to disturb the main petition on merits so that the matter can be agitated and decided by the concerned authorities. It would, however, be essential to direct the concerned officer to dispose of this proceeding within two months from the receipt the record.
29. I am parting with this proceeding with a confident note that the concerned officer would spare time and would not treat this proceeding with indifference but would comply with the order of this Court in concluding this proceeding within two months as stipulated and I also cannot part with this order by putting on record a note of matter dissatisfaction lingering behind, having regard to the events that have occurred.
30. In the result, the rule is made partly absolute. The order of the Executive Magistrate, Biloli dated 24th and 30th July, 1979, passed in file No. 79-Mag-145 CRPC/CR-16 directing the attachment of various gut numbers thereunder situate at village Kalala, Taluka Biloli, District Nanded and placing those under the Government supervision is set aside with the resultant inevitable consequence that for the ensuing season for the year 1981-82 the lands which are held by the Circle Inspector as Receiver and which are being so far occupied and cultivated for the last two years by the concerned auction purchasers shall not be put for fresh auction for the current agricultural season and shall be restored to all the respective parties including the petitioners as also respondents in consonance with the mutation entries for the year 1978-79.
31. The Sub-Divisional Magistrate, Digloor, to whose file the main proceeding under section 145 of the Code of Criminal Procedure is transferred shall dispose of the same within two months from the receipt of the record.