Amrishchandra Agarwal vs The State of Maharashtra

A.M. Thipsay, J.—The applicant was a party in the proceedings under section 145 of the Code of Criminal Procedure (for short ''the Code'') which were initiated on the basis of a report submitted by the Inspector of Police, Manikpur Police Station to the Executive Magistrate, Vasai. The applicant and one Ashok Kumar Agarwal were the party no. 2 while the respondent no. 2 herein was the party no. 1 in the proceedings. After holding an inquiry into the matter, the Executive Magistrate, Vasai, declared that the disputed property was in possession of the party no. 1 i.e. respondent no. 2 herein. The Magistrate also directed that ''the party no. 1 should not be obstructed from using the disputed property''. Being aggrieved by this order passed by the Magistrate, the applicant approached the Court of Sessions at Vasai by filing an application for revision. The learned Addl. Sessions Judge, Vasai, however, dismissed the revision. Being aggrieved thereby, the applicant has approached this Court invoking its inherent powers, and praying that the order passed by the Magistrate under the provisions of section 145 of the Code, as also the order passed by the Addl. Sessions Judge, dismissing the revision application be set aside.

I have heard Mr. A.H.H. Ponda, learned counsel for the applicant. I have heard Mr. P.K. Dhakephalkar, learned Senior Advocate for the respondent no. 2. I have also heard Ms. Sharmila S. Kaushik, learned APP for the State.

With the assistance of the learned counsel, I have gone through the impugned orders and other annexures to the application as also the documents pointed out to me by the learned counsel from the compilation of documents separately submitted.

The immovable property which is the subject of dispute consists of land of vast area of about 15 lakh sq.feet consisting of Plot nos. A, A1 and B, situate at Pereira layout, Vasai. Civil disputes between the parties with respect to the ownership and possession of the said land which, as aforesaid, is of a vast area, are pending in Civil Courts. However, since the police had reported to the Executive Magistrate that the dispute between the parties was likely to cause breach of peace and, that therefore, it was necessary to initiate the proceedings under section 145 of the Code, the Magistrate held an inquiry.

Since it appeared that the disputes between the parties in respect of the land in question are pending before the Civil Courts, the necessity of any interference in the matter by exercising the inherent powers of this Court was doubted, but the learned counsel for the applicant submitted that the impugned order being patently illegal and perverse, needs to be set aside. He expressed an apprehension that taking advantage of the order passed by the Executive Magistrate, the respondent no. 2 might raise false contentions in the disputes that are pending before the Civil Courts. Mr. Dhakephalkar, the learned Senior Advocate, on the other hand, submitted that there was no necessity of interfering in the matter, as the observations made by the Magistrate in the impugned order would not be binding on the Civil Courts, and therefore, there is no likelihood of the respondent no. 2 being benefited by such observations. After hearing the learned counsel for the parties, it was thought proper to examine the matter on merits, and consider the necessity of exercising the inherent powers of this Court.

A reading of the order passed by the Magistrate shows that there is no reference to any preliminary order, as contemplated under subsection (1) of section 145 of the Code. It does not appear that a preliminary order under Sub-Section(1) of Section 145 of the Code was passed by the Magistrate, before calling upon the parties to attend his Court. Such a preliminary order is a must. Without passing a preliminary order as contemplated under section (1) of section 145, and without arriving at a satisfaction that a dispute likely to cause a breach of peace, exists concerning any land or other immovable property, it would not be competent for the Magistrate to require the parties concerned to attend before him, and put in written statements of their respective claims, as regards the fact of actual possession of the property in dispute. A reading of section 145(1) indicates that the Magistrate is required to record the grounds of his being satisfied about the existence of a dispute likely to cause breach of the peace concerning the land or other immovable property that is the subject of dispute.

Mr. Ponda submitted that since no preliminary order was passed by the Magistrate under subsection (1) of section 145, the inquiry conducted by him was vitiated. Mr. Dhakephalkar, the learned counsel for the respondent no. 2, on the other hand, submitted that there was no basis for holding that no preliminary order was passed by the Magistrate in the matter. He submitted that the compilation of documents tendered by the applicant itself, indicates that a preliminary order was passed by the Magistrate, and only thereafter, the parties were summoned by him to appear before him. Mr. Dhakephalkar also submitted that, even assuming for the sake of arguments, that no preliminary order was passed in the matter, the parties having not raised such an objection before the Magistrate, and having participated in the inquiry proceedings were not now entitled to challenge the order passed by the Magistrate on that ground.

I have considered the matter.

The documents which are pointed out to me by the learned counsel for the respondent no. 1 as preliminary orders are actually only notices issued to the parties by the Magistrate, requiring them to appear before him, and put in the written statements in respect of their claims with respect to the possession of the land in question i.e. the subject of dispute. These notices must be preceded by a previous order passed under section 145(1) of the Code, and cannot themselves be construed as preliminary orders.

Indeed, it appears to me that no preliminary order was passed by the Magistrate, particularly because there is absolutely no reference to any preliminary order in the impugned order. Passing of a preliminary order would be necessary as that would signify the satisfaction of the Magistrate about the existence of a dispute likely to cause breach of peace, and it is his satisfaction about the existence of such dispute that gives him jurisdiction and authority to proceed further by holding an inquiry as contemplated under section 145 of the Code. The trend of the authoritative pronouncements of various High Courts, appears to be that proceedings initiated by a Magistrate without passing a preliminary order would be vitiated. There is a special significance to the date of the preliminary order in cases covered by the proviso to Subsection (4) of Section 145, and it therefore appears that such an order is a must. However, in the view that I am taking, it is not necessary to go into the effect of having held an inquiry without passing preliminary order, and whether the order passed by the Magistrate would be bad on that account itself, as the impugned order, even otherwise, suffers from a patent error committed by the Magistrate.

The proceedings under section 145 of the Code are meant for preventing breach of peace. The object of the inquiry held under section 145 is not to decide the civil rights of the parties, but to maintain the party in possession till the party claiming right over the subject of dispute evicts him by adopting due process of law. What the Magistrate is required to decide in the proceedings under section 145 of the Code is the actual physical possession of a party over the subject of dispute. Undoubtedly, by virtue of the proviso to section 145(4), a party who has been forcibly and wrongfully dispossessed within a certain period is treated as a party in possession, but what cannot be doubted or disputed is that the Magistrate is required to decide; and that too ''if possible'' which of the parties was on the date of the order made by him under subsection (1) in possession of the subject of dispute. Section 145(4) makes it clear that the Magistrate has to decide the aspect of actual physical possession of subject of dispute by a party, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute.

In the instant case, what the Magistrate has done is contrary to the scheme of the provisions of section 145 of the Code. The Magistrate has discussed the claims of the parties about their right to possess the disputed property, and has noted the various agreements, complaints that have taken place in connection with the dispute regarding the said property. The Magistrate has then referred to the civil dispute pending between the parties in the Civil Court at Thane, and some orders passed by this Court when the matter was brought before this Court in Appeal. The Magistrate noted the contentions of the applicant''s party i.e. party no. 2 before the Magistrate. The Magistrate also noted the contention of the party no. 2 that the Civil Court has already held the subject matter of dispute to be in possession of the party no. 2 and that, therefore, the Magistrate had no jurisdiction to decide the dispute under the provisions of section 145 of the Code.

The Magistrate then declared that the property in question was in the possession of party no. 1 i.e. respondent no. 2, and that the respondent no. 2 should not be obstructed ''from using the said property''. The only reason for passing the order in that manner, as appearing from the judgment delivered by the Magistrate is that the property in question was in the name of respondent no. 2 in the revenue records, and that it was nonagricultural land. Except this, no other reason for passing the impugned order has been given by the Magistrate.

What the Magistrate has decided is who should have or who has a right to possess the disputed property. He has decided that the same is in possession of the respondent no. 1, only because his name has been entered in the relevant records.

The Magistrate was not entitled to consider the rival claims of the parties about their rights to possess or own the subject of dispute, and what he was required to decide is actual physical possession of the property by either of the parties, and that too, if that would be possible. The actual physical possession cannot be decided on the basis of the civil rights of the parties, or on the basis of documents submitted by them showing their title, or right to possess or occupy the property - subject of dispute. These aspects would be decided by a civil court. The provisions of Section 145 are meant for protecting the actual physical possession of the party, irrespective of the right of any other party to possess the same.

The impugned order is not in accordance with law. The learned Magistrate has totally misdirected himself, and has declared the respondent no. 2 to be in possession of the disputed property only because the name of the respondent no. 2 has been entered in the relevant village records. The conclusion is absolutely arbitrary, as the fact of name being in the relevant village records does not, by itself, establish that such party is in actual physical possession of the property in question.

The impugned order is therefore, patently illegal. The same is required to be set aside in the interest of justice.

In the result, the Application is allowed in terms of prayer clauses (b) and (c).