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Dosa Hirjee Vs. Bijoy Kumar Jhajharia - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Application No. 1289 of 1981
Judge
Reported in(1983)85BOMLR49
AppellantDosa Hirjee
RespondentBijoy Kumar Jhajharia
Excerpt:
.....of--effect of service and publication under section 145(3) and section 145(6)(b)--person not party to proceedings under section 145 whether can obstruct execution of magistrate's order under section 145--to affect third parties whether proceedings required to be registered as 'lis pendens' under section 52, transfer of property act--transfer of property act (iv of 1882), section 52.;the orders passed under section 145 of the criminal procedure code against a party to a dispute can have binding effect on the successor-in-title in respect of the disputed premises.;the expression 'parties concerned' in section 145(1) of the code of criminal procedure does not mean the disputant-parties before the magistrate, but it would mean ordinarily all those parties who have got some interest in..........premises, and, there is likelihood of breach of peace. this dispute was ultimately decided by the learned magistrate by his order dated august 11, 1977. it was found that the respondent no. 1 was in actual occupation on june 7, 1976 and he was forcibly dispossessed by respondents nos. 2 to 4.2. respondents nos. 2 to 4 carried the dispute to the sessions court as well as to the high court. finally, on march 13, 1981, the high court confirmed the order passed by the learned executive magistrate on august 11, 1977 and the high court finally decided this matter in criminal application no. 835 of 1980, by its judgment dated march 13, 1981.3. for brevity of reference, i may point out that from july 1, 1976 till march 13, 1981 the said dispute under section 145 of the criminal procedure code.....
Judgment:

S.J. Deshpande, J.

1. The petitioner in this application is a partnership firm. The respondent No. 1 is a business concern. Respondents Nos. 2 to 4 are described as officers of M/s. Scientific Instruments Company Limited. Respondent No. 5 is the authority and respondent No. 6 is the State of Maharashtra. The petitioner is challenging the order of the learned Executive Magistrate-respondent No. 5 passed on April 24, 1981. The litigation in this case was initially commenced by respondent No. 1 in the Court of Executive Magistrate at Bombay. Respondent No. 1 approached the Magistrate under Section 145 of the Criminal Procedure Code, making respondents Nos. 2, 3 and 4 as opposite party in that dispute. This dispute was filed before the Magistrate on July 1, 1976 on the ground that the respondents Nos. 2 to 4 have wrongfully dispossessed the respondent No. 1 from the disputed premises, and, there is likelihood of breach of peace. This dispute was ultimately decided by the learned Magistrate by his order dated August 11, 1977. It was found that the respondent No. 1 was in actual occupation on June 7, 1976 and he was forcibly dispossessed by respondents Nos. 2 to 4.

2. Respondents Nos. 2 to 4 carried the dispute to the Sessions Court as well as to the High Court. Finally, on March 13, 1981, the High Court confirmed the order passed by the learned Executive Magistrate on August 11, 1977 and the High Court finally decided this matter in Criminal Application No. 835 of 1980, by its judgment dated March 13, 1981.

3. For brevity of reference, I may point out that from July 1, 1976 till March 13, 1981 the said dispute under Section 145 of the Criminal Procedure Code was pending between the respondent No. 1 and respondents Nos. 2 to 4.

4. After the decision of the High Court on March 13, 1981, the respondent No. 1 started to execute the order passed by the Executive Magistrate. It is in execution of this order that the present petitioner came on the scene. When the Police Inspector attempted to enforce the order passed by the learned Executive Magistrate, it was reported that the present petitioners were in occupation of the disputed premises. I may mention here that the disputed premises are a' godown, situate at godown No. 15, plot No. 18, ground floor, Sion road, Wadi Bunder, Bombay-400 009. For the sake of brevity I will refer this premises as disputed premises.

5. When the order of the Magistrate was being executed, through police, the petitioner was found in occupation of those premises and the matter was referred back to the Magistrate. Then it was perhaps referred to the Sessions Court. Finally, it was decided that, the Magistrate should execute the order ignoring objections, so the learned Magistrate passed an order saying that the said premises be taken possession of from whomsoever in possession and handed over to the applicant i.e. respondent No. 1 immediately. It is this order of the learned Magistrate which is challenged by the present petitioner. It may be noted here that the order of the learned Magistrate is passed under Section 145 of the Criminal Procedure Code. It is a final order made by the learned Magistrate, under Form No. 25, of the Criminal Procedure Code. The order passed by the learned Magistrate can be enforced. The form which is given in the Code is found in the second schedule attached to the Criminal Procedure Code. It is the second Schedule Form No. 25, which declares that the Magistrate after duly recording his notes in respect of a dispute likely to induce a breach of peace, which existed between the parties, he declares the possession of the said subject of the dispute and further directs that the party is entitled to retain such possession until ousted by due course of law. I am not narrating the form No. 25 in detail, which furnishes some guidance to show how order of the Magistrate is to be declared in case of final decision of the dispute under Section 145.

6. In this case, the order is for restoration of possession, because under Sub-section (4) of Section 145, the Magistrate is empowered to restore the possession to the applicant if the applicant proves that he was wrongfully and forcibly dispossessed either before or after the preliminary order was passed by the Magistrate. In this case, the learned Magistrate passed an order on July 1, 1976 by which the Magistrate finally decided that respondent No. 1 was entitled to the restoration of possession and, therefore, he issued directions as stated above.

7. The petitioner in this case claims to have acquired the disputed premises on September 27, 1979. It is said that respondents Nos. 2 to 4 to this petition are office bearers of M/s, Scientific Instruments Company, which was a former tenant of the disputed premises. They surrendered tenancy of the disputed premises to the original landlord i.e. Goldwyn Estates Company and it is the Goldwyn Company which handed over the possession to the present petitioners. The petitioner claims that the former tenants having surrendered their tenancy of the disputed premises, any order passed against them cannot bind the petitioner. Now, in this connection, it is to be noted that respondents Nos. 2 to 4 had actively participated in the dispute before the Magistrate. They had filed revision against the final order dated August 11, 1977 passed by the Magistrate in this case. It is during the pendency of the revision, I am told that respondents Nos. 2 to 4 had also obtained stay order from the revisional Court in regard to stay of operation of the impugned order of the learned Magistrate. It is undisputed that respondents Nos. 2 to 4 were the office bearers of M,/s. Scientific Instruments Company and they were in occupation of the said premises. During the pendency of this revision, which was filed by the respondents being revision No. 351 of 1977 before the Sessions Court, the present petitioner had come on the scene. The revision which was filed before the Magistrate was prosecuted by respondents Nos. 2 to 4 themselves. It is not disputed that they were main parties to the dispute under Section 145. It cannot be said that respondents Nos. 2 to 4 were litigating the claim before the authorities in their own right. It is impossible to conceive that they had got any independent interest in the premises. It must be held that the original tenancy belonged to M/s, Scientific Instruments Company and respondents Nos. 2 to 4 being its office bearers, were representing the said Company. Therefore, it cannot be said that orders passed against respondents Nos. 2 to 4 cannot have any binding effect on the successor in-title in respect of the said disputed premises.

8. If it is held that the petitioner is bound by the order passed against respondents Nos. 2 to 4, then, this petition can be disposed of on this short point alone. I have dealt with this point only to show that in this case, it is not open for the petitioner to say that he had no knowledge of the proceedings taken by respondents Nos. 2 to 4 and apparently he has no notice of the said proceedings, because he was not a party to the proceedings started by respondents No. 1 before the learned Magistrate.

9. However, the learned Advocate for the petitioner has submitted before me, that whether third party is affected by the orders passed by the learned Magistrate under Section 145 of the Criminal Procedure Code, requires to be considered by this Court. I have, therefore allowed him to argue the said point. The learned Advocate for the petitioner contended that the general principle, that person cannot be bound by the orders which are passed in the proceedings to which he is not a party is available for him for his protection. It is contended that the petitioner being bona fide transferee of interest having no notice of the title of former occupants and being not a party to the proceedings taken by the former occupants must be protected on the general principle of natural justice. Relying on this general principle, the learned Advocate for the petitioner contended that the decision passed by the learned Magistrate under Section 145 of the Criminal Procedure Code, will not bind the petitioner. In support of his contention, the learned Advocate for the petitioner invited my attention to the following decisions: (1) Shankhta Shukul v. Govindi Devi : AIR1950All693 , (2) Bholanath Dhar v. Gour Gopal : AIR1953Cal777 , (3) Ram Niranjan Missir v. Ramdeo Missir : AIR1959Pat196 . In Allahabad case, the dispute was filed by the husband and right of wife was involved. It was contended that the wife had an independent right and it will not be affected by action taken by the husband. The husband had not filed proceedings on behalf of the wife. The observations made by the Allahabad High Court in para. 10 of its judgment invoke general principle and general rule when they say that it is not possible to take out case from the purview of general rule that when a person is not a party to the proceedings, he is not bound by the orders made in the proceedings. It is on this basis that the Allahabad High Court in that case held that the said party was not bound by the order. The second decision cited by the learned Advocate for the petitioner has no relevance to the present situation. Second decision of Calcutta High Court only states that if interested persons are not made a party, order cannot operate against them. It will be operative only against the persons who are before the Magistrate. Therefore, decision of Calcutta High Court in Bholanath Ghar's case (supra) is also of no assistance to the petitioner. In third decision, in Ram Niranjan's case (supra), the order related to proceedings under Section 145 of the Criminal Procedure Code, which clearly mentions that orders passed in the proceedings cannot operate against the persons who are not mentioned therein. It also proceeds on the general principle and it mentions that only persons who are party before the Magistrate will be bound by the order. All these decisions according to me, are based on the general principle and cannot be of any assistance to the petitioner, who is hampered by the order passed under Section 145 of the Criminal Procedure Code.

10. Section 145 of the Criminal Procedure Code falls in chap. X of the Criminal Procedure Code, under heading 'Maintenance of Public Order and Tranquility.' This chapter contains Sections from 129 to 148. There are four sub-headings under this heading; (A) Heading is 'Unlawful Assembly (B) Heading is 'Public nuisance' (C) Heading is 'Urgent cases of nuisance or apprehended danger and (D) Heading is 'Disputes as to immoveable property.' I am referring all these headings only to show the nature of the orders which are passed under this chapter by the Magistrate. This section has wider impact in the matter of effect of orders passed under relevant sections in this chapter. The main object of this section seems to be to safeguard the public interest and to protect public peace and to prevent public danger. It is against this background, that one has to understand the orders passed under Section 145 of the Criminal Procedure Code.

11. Section 145 begins with the words 'procedure where dispute concerning land or water is likely to cause breach of peace.' These proceedings are of a special character. This is not purely criminal proceeding nor can it be said to be purely civil proceeding. They are not proceedings started by a party by filing a complaint or by the police by filing report. It is not necessary that particular person should be informant or applicant to start the proceeding. If the Magistrate is satisfied about the existence of likelihood of breach of peace on police report or information, he can take action under this section. The foundation which is laid down in this section to take action, does not depend on the approach of a particular party. In practice however, the parties do approach the Magistrate by filing an application. But true requirement of the section is existence of dispute and probable likelihood of breach of peace. Reference to peace must be understood in wider sense i.e. public peace of the locality. Section then goes on to say that the Magistrate will pass a preliminary order under Sub-section (1) which is a mandatory requirement. After passing of this preliminary order special mode of service of this order is given in Sub-section (3) of Section 145. This Sub-section (3) reads as follows:

A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall of published by being affixed to some conspicuous place at or near the subject of dispute.

The essence of this Sub-section (3) is that the order is not only to be served on the party, but it is required to be affixed to the conspicuous place where dispute has arisen and near subject of the dispute. The effect of this affixing and publishing the order as provided in Sub-section (3) is indicative of the fact that there should be sufficient publicity of the alleged proceedings, view taken by the Magistrate and order passed by the Magistrate in respect of subject of dispute. Importance of this notice under Sub-section (3) in my opinion, is that any person, who is interested in the subject of dispute can take notice of the dispute having arisen in that area and can participate to protect his rights if he so chooses. The words used in Sub-section (1) of Section 145 refers to 'parties concerned.' 'Party concerned' does not mean only disputants before the Magistrate but it would mean ordinarily all those parties who have got some interest in the subject of dispute and the Magistrate can hear all those parties for the purpose of limited enquiry which he is supposed to make under the provisions of Section 145.

12. It may be noted here that Sub-section (4) of Section 145 clearly mentions that

The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any and which of the parties was, at the date of the order made by him under Sub-section (1), in possession of the subject of dispute.

Under proviso to this Sub-section (4) the Magistrate is entitled to consider a dispossessed party to be in possession on the date of his order if he has been forcibly and wrongfully dispossessed within two months next before the date on which the report of the public officer or information was received by the Magistrate or before the date of his order under Sub-section (1). Then Sub-section (5) provides:

Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed. Subject to such cancellation, the order of the Magistrate under Section (1) shall be final.

13. Under Sub-section (6), when the Magistrate finds that the dispossessed party should be put in possession, this order also under Clause (b) of Sub-section (6) is required to be served and published in the manner as laid down in Sub-section (3). Clause (b) of Sub-section (6) reads as follows:

The order made under this sub-section shall be served and published in the manner laid down m Sub-section (8).

14. The effect of service and publication of this order in my opinion, deserves to be considered. Three things emerge from the above analysis; first is expression 'parties concerned' used in Sub-section (1) is of some significance to understand the scope of enquiry conducted by the Magistrate. 'Parties concerned' does not mean the disputants parties alone. The words 'parties concerned' is of wider scope and it cannot be restricted only to the parties which are before the Magistrate. The second requirement of the section is that subject of dispute is to be defined and preliminary and final order is to be served and published as provided in Clause (b) of Sub-section (6). In view of this provision of Sub-section (3), I think that the intention of the legislature was to notify the order in the local area where dispute has occurred. The dispute is of peculiar nature. It is also relevant to decide only the fact of possession which issue is in controversy. The nature of the dispute is not criminal. If the party is absent, under this section, the Magistrate has no jurisdiction to dismiss the application for default. The person who approaches the Magistrate is not informant in the strict sense. Thrust of Section 145 is that the Magistrate has to satisfy about the likelihood of breach of peace and existence of dispute together and has to pass a preliminary order under Sub-section (1) and he has to serve it and publish in the manner provided by Sub-section (3) of Section 145. The emphasis is according to me, not on the party but on the subject of dispute. If the order is served in the manner provided by Sub-section (3) and in case of complaint of dispossession under Sub-section (b) of Sub-section (6), the subject matter of the dispute is at once seized by the Magistrate and any person interested in the property must be deemed to be bound by the order passed by the Magistrate. The subject matter of the dispute is specified and defined by him and governed by preliminary order which is passed by the Magistrate under Section 145. In all those judgments which were cited by the learned Advocate for the petitioner, there is no reference to the provisions of Sub-section (3), which I have dealt with and therefore, I do not think that these judgments have* any bearing on the controversy raised this case.

15. Having regard to the limited scope of enquiry under Section 145, it is impossible to imagine that a person who claims any right to possess or any interest in the subject of dispute can be allowed to participate in the dispute which may lead to investigation of merits of this case. Enquiry under Section 145 relates only to factual possession of the party within two months from the date of preliminary order. Finding is also related in respect of actual possession and each party has got a right in respect of his title or a right to possess which he may independently claim in the substantive civil suit. It may be emphasised here that justification of the proceedings under Section 145 is in the act of the Magistrate passing a preliminary order and deciding actual possession, the conditions of which are defined and prescribed by the statute law. Therefore, I do not see any justification that a right to possess or interest claimed by any third party during the pendency of the proceedings under Section 145 can be agitated before the Magistrate and such party can be allowed to assert his right and resist the enforcement of the order passed by the Magistrate under Section 145.

16. In the present case, it is admitted by the petitioner at p, 6 of the petition that the order under Sub-section (1) was affixed to the disputed premises following the procedure provided by Sub-section (3) of Section 145. This is sufficient to attribute knowledge and fix notice of the said proceedings to the petitioner in this case and to any other person who chooses to deal with the property in dispute during the pendency of the proceedings under Section 145 of the Criminal Procedure Code.

17. Once the final order is passed by the Magistrate, the intention of the legislature seems to be that the said order should have a reference rather to the subject matter of the dispute than the parties actually engaged. Any party who is desirous of disputing the decision declared by the Magistrate under Section 145 is entitled to institute a civil suit and obtain adjudication of his right to possess. The onus will be on such plaintiff to show that person in possession under the orders of the Magistrate has no right to possess. The very significance of Sub-section (3) relating to the publication of the order has the effect of giving notice to all interested in the subject of dispute. Therefore, the operation of the order of the Magistrate passed under Section 145 extends to persons who may be interested although not formal parties to the dispute.

18. The next contention advanced by the learned Advocate is that the petitioner was that the petitioner being in actual occupation of the premises must be given an opportunity to defend his rights to possess while final order is being enforced against him. He also pointed out, drawing analogy from the provisions of Order XXI Rule 98 to 100 of the Civil Procedure Code, where resistance or obstruction even to civil court decree is permissible. I am afraid, such analogy is inapplicable to the proceedings under Section 145 of the Criminal Procedure Code, As I have shown earlier, the object of proceeding under Section 145 is not to decide any right or award possession to any party. The order is meant to be a temporary order. Any investigation in the realm of right of possession or title to claim possession is directly opposed under Sub-section (4) of Section 145 of the Criminal Procedure Code. That subjection clearly shows that the Magistrate has not to determine as to right to possess. Any third party acquiring possession of the disputed property subsequent to the preliminary order cannot be allowed to agitate his right or claim because it is clearly beyond jurisdiction of the Magistrate under Section 145 of the Criminal Procedure Code, because the possession over which the Magistrate exercises his jurisdiction must be a possession of real and tangible character. It is actual possession which is not under his right to possess nor it is possession which amounts to lawful or legal possession. In short, it is physical and continuous possession. It is clear from Sub-section (4) that the Magistrate is prevented from going into the merits of title or claim. So any person or third party who may intervene the dispute showing his right to possess or title to possess on the basis of some transaction, cannot be competent to invite the Magistrate to decide his claim.

19. There is another reason why the third party may not be allowed to obstruct execution of the order of the Magistrate. Violation of the order passed by the Magistrate under Section 145 would be punishable under Section 138 of the Indian Penal Code. If a public officer restoring possession to a party, in pursuance of the order of the Magistrate under Section 145 of the Criminal Procedure Code is obstructed by any third party, such obstruction may involve even criminal contempt. This peculiar aspect relating to execution of the said order furnishes sufficient guidance to infer legislative intention that a person, not a party to the proceedings before the Magistrate should not be permitted to obstruct or defeat the order of the Magistrate.

20. The learned Advocate for the petitioner submitted that notice of pendency of the proceedings before the Magistrate being not registered under the Bombay Amendment Act of 1959 of Section 52 of the Transfer of Property Act, the petitioner's right cannot be affected. The learned Advocate for the petitioner relied on Section 52 of the Transfer of Property Act to show that pendency of proceedings started before the Magistrate ought to have been registered as Us pendens as provided by the Bombay Amendment Act of 1959, to limit the operation of Section 52. In my opinion, this argument is misconceived. Section 52 of the Transfer of Property Act is analysed by R.B. Pal J. in Hiranya Bhusan v. Gouri Dutt : AIR1943Cal227 . The requirements of section are (1) pendency of the suit (2) non-collusive character of the suit (3) any right to immoveable property being in question in that suit being in question directly and specifically and (4) other party (other than the party making transfer pendent lite) having same right under the decree in that suit. The third ingredient according to me, is most important. The word 'suit' is used in section. Explanation to the section also mentions defining pendency of the suit that it shall mean pendency of the suit or proceedings shall be deemed to have commenced from the date of presentation of the plaint or institution of proceedings in the Court of competent jurisdiction. These words in explanation are sufficient to show that proceedings under Section 145 of the Criminal Procedure Code was not in the contemplation of the legislature while enacting Section 52 of the Transfer Of Property Act. The principle of section is that private party cannot defeat the authority of the Court. The subject of transfer pending litigation is placed in the domain of the Court. The emphasis of this section is not on the notice, but on pendency itself. Pendency of the proceedings before the Magistrate cannot be said to be such as to attract operation of Section 52. It cannot be said that any right to immovable property is directly and specifically involved in a dispute before the Magistrate acting under Section 145. The whole tenor of section shows that pendency of proceedings involving Section 52 of the Transfer of Property Act primarily relates to pendency before the Court which is empowered to decide the rights of the parties. The words used in Section 52 'proceedings in Court of competent jurisdiction' indicate that proceedings must be pending before a Court i.e. authority which is competent to decide the right to immoveable property. The proceedings under Section 145 of the Criminal Procedure Code are totally of different character. The enquiry relating to possession results in declaring actual and factual possession only. It has no reference to merits or title of the parties. Therefore, the submissions made by the learned Advocate for the petitioner must fail on the wording of Section 52 itself. Even if wider interpretation is given to the word 'Court' it cannot include the Magistrate enquiring under Section 145 of the Criminal Procedure Code for the purpose of Section 52 of the Transfer of Property Act. The words 'suit or proceeding' used in Section 52 cannot be extended to the proceedings initiated by the Magistrate under Section 145 of the Criminal Procedure Code. So this contention of the learned Advocate for the petitioner is without any substance.

21. In the result, the petitioners have no right to oppose the execution of the impugned order of the learned Magistrate. As final order is passed by the Magistrate in this case, the petitioners at the most can institute a suit in the Civil Court for determination of their rights.

22. Rule is discharged. No order as to costs.


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