Durgadevi Gonoriwalla vs Radha Krishna Rajgharia

A.K. De, J.—The opposite party No. 1 filed an application, u/s 145 of the old Code of Criminal Procedure before the Magistrate on November 14, 1973, stating that five rooms on the first floor of the house at 16 P.N. Malia Road, Raniganj, where he was staying since after his purchase of it from the Petitioner and the opposite party No. 2, mother and son, had been forcibly taken possession of by them. He also made a prayer that those rooms might be attached. The learned Magistrate asked the O.G., Raniganj, to inquire and report by November 11, 1973. On November 22, 1973, opposite party No. 1 (first party) moved the Magistrate again whereupon the learned Magistrate asked the B.D.O., Raniganj, to enquire and report. He did not, however, recall the inquiry from the O.C. in terms of his order dated November 14, 1973. The B.D.O. submitted his report and upon consideration of that report the learned Magistrate on December 26, 1973, drew up a proceeding u/s 145 and simultaneously ordered attachment of the five rooms. He also appointed the Chairman of the local Municipality as Receiver. The first party moved him again on December 27, 1973, for changing the Receiver. The learned Magistrate revised his order regarding appointment of Receiver and appointed the Circle Inspector, Raniganj, as Receiver in place of the Chairman. The Petitioner filed an application before the Magistrate on January 10, 1974, stating that she had been evicted from the five rooms with her articles by the Circle Inspector of Police on January 8, 1974, and prayed for being put back in possession of the said rooms. The learned Magistrate called for a report from the Circle Inspector and fixed January 15, 1974, for hearing. He also gave notice of that petition to the first-party. He heard both the parties on January 15, 1974 and refused her prayer. She has moved this Court for setting aside the two orders dated December 26, 1973 and January 15, 1974, so far as they relate to attachment of the five rooms, appointment of the Receiver and refusal of her prayer for being restored to possession.

A Magistrate, after drawing up a proceeding u/s 145(1) of the Code, may also order attachment of the subject of dispute if he considers the case to be one of emergency under the third proviso to Sub-section (4) of Section 145 pending decision of the case. The learned Magistrate in this case considers the case one of emergency on two grounds, that (a) there is chance of clash between the parties and (b) that there may even be loss of life. He is acting on the B.D.O.''s report. That report does not mention that there will be clash between the parties or that there is any likelihood of loss of life. His report is that--

As such I am not in a position to decide the question of possession between the parties as it was before especially in view of the fact that the second party is now in exclusive possession of the rooms in dispute. So I would suggest attachment of the rooms in dispute u/s 145 Code of Criminal Procedure to prevent any incident of breach of peace which may occur in case Rajgharia tries to take possession of the rooms anew.

The learned Magistrate has, therefore, gone wrong to consider the case one of emergency on grounds which did not find place in the report on which he was taking steps. The learned Magistrate''s order, so far as it directed attachment of the five rooms, will be set aside. Consequently, his order appointing the Receiver and the steps taken by the Receiver after such appointment will have to be set aside.

The learned Magistrate relied on non-existing facts to refuse the Petitioner''s prayer made on January 10, 1974, by his order dated January 15, 1974. In refusing that prayer he relied on the same report on which he considered the case one of emergency. The report of Circle Inspector dated January 8, 1974, also does not mention any new situation of facts. He states in his order--

In my order dated 26.12.73 I have set forth the reasons for such proceedings and attachment and nothing has occurred to rescind my order as possibility of breach of peace is still in existence. That order will also be set aside and the prayer of y, the Petitioner made before him on 10.1.74 will be granted.

Section 145, Code of Criminal Procedure, does not empower a Magistrate to appoint a Receiver. Nor a Receiver, so appointed, gets any power to evict persons in actual possession from before this appointment or attachment. In the Code of Criminal Procedure, 1898, powers of appointment of a Receiver have been given to the Magistrate only under two Sections 88 and 146. There is no such power given to the Magistrate when he is acting u/s 145. The order of appointment of a Receiver is, on this score, wrong. When a Magistrate attaches the subject of dispute u/s 145, he may perhaps appoint a caretaker but not a Receiver. The powers of a Receiver appointed u/s 88 or Section 146 are specified in Section 88(6) and Section 146(2). A Receiver appointed u/s 145 is firstly unauthorised and secondly he has no powers of a Receiver under Sections 88(6) and 146(2). The learned Magistrate when ordering attachment of the five rooms did not say that the Receiver appointed should take possession of the rooms. Without such clear orders the Receiver Circle Inspector should not have taken possession of the rooms without seeking orders from the learned Magistrate. Reference has been made to an unreported decision of this Court in the case of Siraj Sarma, alias Sheoraj Sarma v. Hari Charan Lala and Ors. Criminal Rev 923 of 1960 decided on December 15,1960, unreported. In that case the Receiver failing to get possession reported to the Magistrate who appointed him and the said Magistrate by his order authorised him to evict. That case has no application to the facts of the present case. Proviso (2) to Sub-section (4) of Section 145 is clear. It states that if it appears to the learned Magistrate after inquiry as to possession that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date and in such case he may restore the party, so forcibly and wrongfully dispossessed, to possession under Sub-section (6). That being the position in law, it was wrong to take possession from a party who had secured possession, even if wrongly, before filing of the case and before the enquiry under Sub-section (4) had been completed. With due respect, I notice that the decision in the unreported case has proceeded without taking notice of the proviso (2) to Sub-section (4) of Section 145. If a party comes before a Magistrate after being dispossessed stating that fact of dispossession, the Magistrate may only get such possession vacated under the second proviso after Section 145(4) after completion of inquiry and not before making any inquiry at all. On this score also the order of the learned Magistrate attaching the five rooms and appointing the Receiver or, the action of the Receiver in evicting the Petitioner from the rooms, where she was actually in possession from before the application u/s 145 is wrong.

Reference was made to Section 88 of the Code to submit that the Receiver appointed by the Magistrate u/s 145 may exercise all the powers given to a Receiver appointed u/s 88. I am unable to accept this contention. Section 88 is that if a Court issues proclamation u/s 87 to secure arrest or appearance of an absconding accused, it may at any time order also attachment of property. In such a case, attachment under that section is made in either of the four ways--by seizure, appointment of a Receiver or by an order in writing prohibiting delivery of such property to the proclaimed person or any person on his behalf or by all or any two of the above methods. If the property to be attached is immovable, it may be attached by taking possession or by appointment of a Receiver or by all or any of the above two methods. Those powers are available to a Receiver appointed u/s 88. When a Receiver is appointed u/s 146 he has all the powers of a Receiver appointed under the CPC as is clear from Sub-section (2) of Section 146. I am, therefore, unable to say that the Circle Inspector, even though he was appointed Receiver by the Magistrate, could have taken any of the steps as were available to the Receiver appointed u/s 88 or Section 146. The order of the learned Magistrate dated December 26, 1973 and also the order dated January 15, 1974, are wrong and illegal. Those will be set aside.

In the premises, I make the Rule absolute, set aside the order of the learned Magistrate dated December 26, 1973, so far as it ordered attachment of the five rooms in question and appointment of Receiver. I also set aside his order dated January 15, 1974, by which he refused the Petitioner''s application made on January 10, 1974. The five rooms now under attachment should be withdrawn and those rooms should be given back to the Petitioner as she was in possession on January 8, 1974, when she was evicted therefrom by the Circle Inspector in wrong exercise of the authority.

Let the records go down quickly.