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Thounaojam Ningol Indrani Devi and ors. Vs. Gurumayum Ningol Mainu Devi and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantThounaojam Ningol Indrani Devi and ors.
RespondentGurumayum Ningol Mainu Devi and ors.
Excerpt:
- .....user, and not a prescriptive title over it. in other words the dispute is regarding an alleged right of user of land as an easement or otherwise, as laid down in section 147.6. it was also not in dispute that the municipality had the right to control and manage this market, subject to the vested interests of or rights acquired by the contending parties, and it is significant that the learned magistrate expressed himself in these words: 'it is not proper for the criminal court to give any finding on the alleged right', in the concluding portion of the last but two paras of his judgment.it is true that the word possession was freely used by all concerned in the statements, affidavits, etc. but it is obvious that it was done in a loose fashion, and in any case it is the real nature and.....
Judgment:

J.N. Datta, J.C.

1. This is a revision petition which in my opinion, must be accepted. The decision of it turns on the consideration of the question whether Section 145 Order 147 of the Cr. P. Code applies to a dispute of this nature.

2. The dispute relates to a Bazar situate at Imphal proper known as Laxmi Bazar. Both the parties claim a right to hold a market there by exposing their goods for sale on the strength of immemorial user. In 1955, the Town Fund Committee erected some sheds on the site for the shop-keepers-Thereafter its successor the Municipal Board allotted seats in those sheds to the second party and there commenced the dispute which gave rise to the initiation of the present proceedings under Section 145 of the Cr. P.C. by the Police, before the A.D.M., Manipur.

3. The A.D.M. proceeded to enquire into the matter but reached the conclusion that he was unable to decide as to which of the parties was in possession. He therefore referred the matter to the Civil Court, as provided for under Section 146, and it is against this order that this revision petition is directed, the learned Sessions Judge having refused to refer the matter to this Court.

4. But as already stated, the first and most important question to be determined is whether the case at all fell within the purview of Section 145, because if it did not then the learned A.D.M. Could not invoke Section 146 and forward the matter to the Civil Court, as he did.

5. Now it was admitted that the land in question belongs to the Government, and what was claimed was a right to hold a private market on it by long and immemorial user, and not a prescriptive title over it. In other words the dispute is regarding an alleged right of user of land as an easement or otherwise, as laid down in Section 147.

6. It was also not in dispute that the Municipality had the right to control and manage this market, subject to the vested interests of or rights acquired by the contending parties, and it is significant that the learned Magistrate expressed himself in these words: 'it is not proper for the Criminal Court to give any finding on the alleged right', in the concluding portion of the last but two paras of his judgment.

It is true that the word possession was freely used by all concerned in the statements, affidavits, etc. but it is obvious that it was done in a loose fashion, and in any case it is the real nature and not the language which has to be looked into to determine the correct character of the dispute. It will be thus plain that while action under Section 147 was permissible the learned Magistrate in purporting to act under Section 145, acted without jurisdiction, and his order referring the matter to the Civil Court must be sot aside.

It might be repeated that the language of Section 147 is clear and does not admit of an action under Section 146. It might also be mentioned that the mode of enquiry under Section 147 is different from the mode in sections 145 and 146, and under the former section the Magistrate must take all the evidence produced by the parties and come to a definite decision, that is. there can be no reference to the Civil Court by him.

7. In this view of the matter it is not necessary to go into other points. I set aside the order of the A.D.M., referring the matter to the Civil Court and also the preliminary order under Section 145. and remand the case to him to proceed according to law, that is. he will reconsider the report or information, and if he finds that there is a likelihood of a breach of the peace as laid down in Section 147, he will proceed accordingly.


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