under Section 146(1) of the Criminal Procedure Code .
1.Whereas a police calendar has been received through Acp, Parliament Street, New Delhi, preliminary order under Section 145(1) of the Criminal Procedure Code . has been passed by me today regarding the dispute for the possession of show room bearing No. 10-A,Scindia House, Connaught Place, between tho two above named parties which may induce a scriou' apprehension of breach of peace.
2.Whereas after going through the police calendar, I find that this dispute between the two respondent parties is of a serious emergency nature and it can induce an apprehension of breach of peace at any moment.
3.Whereas from the police report it also appears that respondent party No. 1 has been disposed forcibly by respondent party No. 11 through an element of conspiracy and deceit.
4.And whereas keeping the view of real estate in the area where the disputed premises is located and also in view of the report of the S. H. O. Connaught Place and Acp Parliament Street, I am satisfied that the said dispute for the possession of 10-A, Scindia House, Connaught Place, New Delhi between the two above named respondentparties, is a case of emergency which requires immediate preventive action under Section 146(1)of the Criminal Procedure Code . directing the S. H. O. Connaught Place to immediately attach the said premises. He is also appointed as a receiver of the property after attachment. The compliance of this order should be forwarded to this court on 18-1-82. A copy of this order should be conspicuously affixed near the disputed premises.
GIVEN under my hand and seal of this day of 16/01/1982.sd/- R. Chander Mohan Dated : 16-1-82 Sub-Divisional Magistrate New Delhi.'
(3) The petitioner did not challenge the preliminary other,or the order of attachment, either by a revision in this Court,or in the Court of Session, or in a petition to this Court under Section 482 of the Code. It, however, instead filed an application, on January 19, 1982, before the learned Magistrate invoicing sub-section (5) of Section 145, and proviso to sub-section(1) of S. 146 and prayed that the preliminary order by 'vacated',the attachment order be 'set aside' and the proceedings be 'dropped'. On 20/03/1982, the two Corporations filed a suit in the District Court, under Section 6 of the Specified Relief Act,for recovery of possession of the premises, on the ground that they had been 'illegally dispossessed' there from. A. R. P.and the petitioner were imp leaded as defendants in thesuit. This suit is still pending. Meanwhile, by an order of 14/04/1982, the learned Magistrate dismissed the petitioner's application for recalling the impugned orders, and for dropping the proceedings, on the ground that the preliminary order was passed by the then Magistrate only when he was 'satisfied'about it; that the then Magistrate was satisfied that 'proviso to Section 145(4) was applicable to the case'; that once the proceedings had been commenced 'they could not be dropped in the mid-way because the apprehension of breach of peace need not exist at every stage'; and that the question of withdrawal of attachment and of dropping the proceedings 'did not arise',otherwise, 'it would mean that there was no emergency and that there was no apprehension of breach of peace'. Thisorder was challenged by the petitioner in a revision in the Session Court and by an order of 19/03/1983, now under formal challenge, the learned Additional Sessions Judge not only upheld the order of the learned Magistrate, challenged beforeit, but also expressed the view that the orders passed on 16/01/1982 were not illegal 'prima facie in the eye of law taking into consideration the Stage of the case'. The learned Additional Sessions Judge further expressed the view that' there is no material or legal point involved just to disturb the order of learned Sub-divisional Magistrate below', and added that he was 'hesitant to quash the proceedings before the learned Sub-divisional Magistrate below.' The learnedAddl. Sessions Judge, however, turned down the objection that since the petitioner had not challenged, in terms, the composite order of 16/01/1982, the legality of these orders could not be canvassed in the proceedings, on a challenge to the order of 14/04/1982.
(4) By an order of 27/04/1983, the Metropolitan Magistrate, New Delhi, who was seized of the complaint of the petitioner against A. R. P. and others, under Section 420/120-B,I. P. C. dismissed the complaint on the ground that there was no substance in it holding that from the material on record, it appeared that the circumstances leading to the transaction between the petitioner and A. R. P. and delivery of possession to the petitioner of the premises in dispute had been fully Disclosed to the petitioner. It was further held that the matter was of a civil nature and that civil court was the proper forum to decide the respective rights of the parties with regard to the title to the property. This order is the subject-matter of Cr. R. 295183,filed by the petitioner in this Court. -This petition is at the show-cause stage, and its further consideration was held over pending final hearing and decision in the present petition. The present petition was filed on 9/09/1983.
(5) I have heard learned counsel for the petitioner, the twoCorporations, as well as A. R. P. Learned counsel for the parties were not unaware of the limited scope of the present proceedings but, having regard to the unusual features of the case referred to above, and in particular, the pendency of the proceedings in the Civil Court, of the prosecution against A. R. P. andothers, and the petitioner's own complaint against A. R. P.and others, did not, and perhaps could not confine to there other narrow question with which this Court is really concerned in a petition of this type at the present stage of the proceedings u/s. 145. In the course of their rather elaborate arguments, allegations and counter allegations were made suggesting that the petitioner was a party to the conspiracy to 'trick'the Corporation out of the valuable property with the collusion of two employees of M.P.S.I.C. who must have been bribed to provide an apparently .legal cover to a blatant act of wrongful dispossession, and that to provide the cover of respectability and innocence, the petitioner and A. R. P. filed frivolous suits and other proceedings and even procured injunction orders from a common judicial officer, through exercise of undue influence. On the other hand, it was suggested that whatever bathe nature of the possession of the petitioner, and howsoever wrongful and fraudulent may have been the manner in whichthe petitioner was. put in .actual physical possession by A. R. P.,proceedings under section 145 were uncalled for and the two Government Corporations manipulated initiation of. proceedings,as indeed, .for the prosecution .of A. R. P. and certain others,for an offence u/s 448/34 Indian Penal Code and procured wholly illegal preliminary order and order of attachment from the Court by exercise of undue official pressure on the police and the Courts concerned by the misuse of their position and authority as Government Corporation, apparently through the then HomeMinister, at the Centre, who was at one time the Chief Minister of Madhya Pradesh. Allegations were also made that The agreement to sell entered into between the petitioner andA. R. P. mentioning a consideration of Rs. 14 lakhs was only an 'apparent' consideration and that the 'real' consideration was much higher and the difference must have been paid to A. R. P. 'under the table', and that this was a practice for which A. R. P. and its promoters were known in Delhi, and that proceedings under Section 269-A of the Income-tax Act had already been initiated against the petitioner and A. R. P.by the Income-tax Authority concerned. There was some controversy if, having regard to the frame of th3 present petition,and the orders formally challenged by it, the petitioner could have canvassed before this Court, in the present proceedings.the validity of the composite order of 16/01/1982 and there was considerable controversy if the proceedings under Section 145 were maintainable where the petitioner was admittedly in occupation of the premises, lawfully or otherwise, and the Corporation merely raised before the Police, asindeed, before the Court concerned, their right to oust the petitioner from possession. It was alleged that the police, asindeed, the Court in proceedings u/s 145 was only concerned with the dispute with regard to actual physical possession and any dispute with regard to 'right to take possession' from another was outside the scope of such proceedings. A contention was also raised that where the two Corporations admitted that the petitioner was in actual physical possession but complained that the Corporations were interested in securing the restoration of their possession and apprehended breach of peace from the petitioner, if the officials of the Corporation carried out their intention to take possession of the property,or if the officials of the petitioner or their representatives hadthreatened, as alleged by the Corporations that if there wasany interference with the petitioner's possession, the petitioner would be bound to protect its interest, it could be said that there was a 'dispute' with regard to property which was likely to cause breach of peace so as to attract the preventive pro-visions of Section 145. There was also considerable controversy as to the meaning of the expression ''emergency' and if, in the absence of any material, indicating an urgency, an attachment order could be made merely because of the 'stakes' involved or the 'location' of the property or its possible 'value', as distinct from imminent danger of perceptible action.
(6) It would be proper to first deal with a preliminary point with regard to the maintainability of the present petition, and if in its present form the petition could be legitimately taken as assailing the validity of the proceedings under Section 145and of the composite order of 16/01/1982. The point was not raised by way of preliminary objection, and was not even seriously agitated, but counsel for the Government Corporations, though lukewarm about it, did not give it up, apparently, to take its aid, should they need it in any further proceedings. The contentions were two-fold. In the first instance, it was urged that the petitioner never challenged the validity of the proceedings or of the composite order, either in revision before this Court, or the court of Sessions, or in this Court u/s 482 earlier or in the present petition & that the orderhas, thereforee, become final and would as such immune from challenge in the present petition. Secondly, it was urged that in any event, the petitioner challenges in the present proceedings the revisional order of the learned Additional Sessions Judge,upholding that of the learned Magistrate, refusing to 'vacate'or ''rescind' the composite order and to 'drop the proceedings' and that there was no formal challenge, in the presentpetition, either to the validity of the proceedings or of the composite order. Somewhat similar objection had been raised on behalf of the Corporations even before the learned Additional Sessions Judge, when a plea was raised before him that the composite order, and the proceedings in which it was made, were not under challenge before him in the petitioner's revisions.The contention was turned down by the learned Additional Sessions Judge, and rightly, in my view. The petitioner, nodoubt, had the option .to challenge the proceedings u/s 145,as indeed, the composite order either in revision in this Court or in the Court of Session or even under Section 482 of the Code in this Court, instead of asking the Magistrate concerned to cancel or rescind the composite order and to drop the proceedings pursuant to what the petitioner thought were the remedies available to the petitioner, either under sub-section(5) of Section 145, or of proviso to sub-section (1) or Section 146, or under both. There was some controversy if the provisions of sub-section (5) of Section 145 or the proviso to sub-section (1) of Section 146 could be invoked in a contentions matter and if these provisions could be invoked only if all the parties concerned agreed before the Magistrate that continuation of proceedings any further was unnecessary and they be dropped and the orders be rescinded but it is hardly necessary to go into this aspect of the matter because the contentions of the Corporations raise more matter of form than of substance. The plea of the petitioner that the proceedings be dropped and the orders be rescinded, as indeed, its petition to the Additional Sessions Judge, when the plea did not prevail in the first court, was qualitatively no different than aE straight plea that the proceedings and the composite order were not competent or justified, either on the material before the court, when they were initiated, or made, or in the face of any fresh material that may be brought or of any subsequent developments. The challenge 'to the proceedings and the compositeorder was, thereforee, quite implicit, both in the application before the learned Magistrate for dropping the proceedings, asindeed, before the Additional 'Sessions Judge in revision, and what is true of these is equally true of the petition before this Court.It is good to remember in this context that the procedural provisions and the form or norms laid down for legal proceedings are after all hand made of justice and could not be allowed to supplant the substance or to frustrate the ends of justice unless there is something in the form or the procedure which is so mandatory in its nature that a variation of it would defeat the very object for which the procedure has been laid down. But that part, once a matter is brought before a Court the court of Session or this Court, arising out certain proceedings in the court below, it is always open to the party aggrieved by any proceedings or any orders to challenge the proceedings or the orders, as indeed, for the court to examine their validity and perhaps the only safeguard necessary is that the other side should not be taken by surprise and no prejudice should be caused to its interest. The basic controversy between the parties since the initiation of the proceedings under Section 145 has-been not only in the first court, as well as the Session Court,but also in this Court, if, on the material on record, initiation of proceedings under Section 145 of, the Code, and the composite order, made by the Magistrate, could be justified with reference to the legal requirements. Any of the Courts could rule on it irrespective of the form of the petition or the nature of the jurisdiction invoked by the petitioner. In any event,the inherent power of this Court u/s. 482 does not admit of any limitation, if the conditions for the exercise of that power aresatisfied, except.tbose that are self-imposed. In exercising thisjurisdiction, this Court is expected to be circumspect and acts with restraint by virtue of judicial self-discipline. If the courtfrowns at injustice, it would not cause it by its own act. There are no other fetters. There is, thus, no substance in the objection and I am not, surprised at the Luke warmth with which itwas raised so as to keep a controversy of jurisdiction alive,should its aid become necessary at a later stage of the proceedings. I have, thereforee, no hesitation in, overruling it.
(7) The next question that calls for decision is as to the true meaning and scope of the words 'a dispute...........concerning any land or water or the boundaries: thereof' used in sub-section (1) of Section 145. According to the Corporations, any dispute concerning immovable property, whether asto. the title to it, or as to right to its possession, would attract the preventive jurisdiction under section. 145 of the Code, if such dispute was likely to cause a breach of-peace: and the dispute need not necessarily relate, to. actual' possession of the property and the words 'claims as respects the fact of actual possession of the subject of dispute' occurring in the last para of subjection(1) merely indicates the extent of the limited function of the court without in any way fettering the width of the expression 'dispute' occurring in the earlier part of the sub-section,which defies the condition for initiation of action in very wide terms so as to take within its sweep a dispute concerning immovable property, whether of title to it or right to its possession.On the other hand, the petitioner contents that the expression 'dispute' occurring in the earlier part of sub-section gets itscolour, and is controlled by, the expressions 'actual possession of the subject of dispute' used in the latter part of the subjection and that the condition for initiation of action and the function of the court are co-extensive in their scope. It was, thereforee, urged that a dispute with regard to actual possession of immovable property alone was capable of attracting the preventive jurisdiction under the sub-section and that a mere claim by one party, who is admittedly out of possession, that it is entitled on some reckoning, to the possession of the property would not justify proceedings under that sub-section, whatever may be the circumstances in which such person was dispossessed, and irrespective of the other remedies that a dispossessed person may have in relation to the property, including a civil action for recovery of possession, as indeed, an action for damages. This contention assume considerable importance because, even though the parties were at considerable variance as to the manner in which the Corporations were 'tricked' out of possession of the property.whether with or without the connivance of or collusion with the petitioner and one or the other of the employee of the Corporations, there can be no doubt that when the proceedings under Section 145 were initiated by the Police, the representatives of the petitioner were in actual physical possession, even though there is also a dispute as to whether the actual dispossession of the Corporations took place in the last week of November orlater. It is also obvious, and is borne out by the reports of the Corporations, that after they came to know of the dispossession or surrender of possession unauthorisedly on their behalf,their representative came to Delhi and claimed what in his ownterms, is described as the 'right to maintain possession' or in other words to dispossess the petitioner otherwise than in ordinary course of law on the ground that the Corporations were entitled to the possession of the property since the purported surrender of tenancy and delivery of actual possession by one or the other of its employees was not the act of any of the Corporations, but was an 'unauthorised act' of these individuals,who had no 'authority' to act in the manner they purported todo. Alternatively, it is impliedly suggested that Arp, or the petitioner, or both acting in conspiracy, took wrongful possession ofa locked premises, and eventually gave the wrongful dispossession the colour of voluntary act of surrender on behalf of the Corporation, inter alia, by 'fabricating' or 'manipulating' certain documents said to have been signed by one of its allegedemployees. But either way, there is hardly any escape from the conclusion that on the two Corporations' own showing they were not in actual physical possession of any part of the property on the material date even though the officers deputed by the Corporations were interested in asserting a legal right to 'maintain'possession or take possession and sought police aid apprehending that an attempt to 'maintain' or take possession was likely to be met with resistance by the representatives of the petitioner,who were found to be on the premises, thereby causing a serious apprehension of breach of peace. If that be the true factualposition, the proceedings, on one reckoning, will be clearly without jurisdiction, if the expression 'dispute' used in the earlier part of sub-section (1) of Section 145 was to be narrowly construed, in the context of what follows as the function of the court in the proceedings, that is, to determine which of the twoparties, if any, was in 'actual possession' of the property on the material date, or be deemed to be in such possession on such date. If the expression 'dispute', however, was to be widelyconstrued, so as to include any dispute concerning immovable property, whether of title to it, or of right to its possession, as distinct from a dispute relating to its actual possession, the two Corporations certainly could seek the aid of the provision on any reckoning, if the other condition that the dispute was likely to cause a breach of peace was satisfied.
(8) It would be useful to read at this stage Sections 145 to147. These three Sections, which are part of Chapter X of theCode, dealing with maintenance of public order and tranquility,and part of the Chapter's sub-division dealing with 'disputes asto immovable property', and contain the preventive provisions of the Code read thus :
(1): Whenever an Executive Magistrates satisfied from a report of a police officer of upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his localjurisdiction, he shall make an order in writing; stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of theirrespective claims as respects the fact of actual possession of the subject of dispute.
(2)For the purposes of this section, the expression 'land or water' includes buildings, markets, fisheries; crops or other produce of land; and the rents or profits of any such property.
(3)A copy of the order shall served in the manner provided by this Code for- the service of a summons upon such person or persons as the Magistrate maydirect, and at least one copy shall be published by being affixed to some conspicuous place at or near subject of dispute.
(4)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,impossible, 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 :Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on whichthe report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1),he may treat the party so dispossessed as if thatparty, had been in possession on the date of his order under sub-section (1).
(5)Nothing in this section shall preclude any party so required to attend, or any other person interested,from showing that no such dispute as aforesaid exists or has existed, and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section(1) shall be final.
(a) If the Magistrate decides that one of the particswas, or should under the proviso to sub-section (4)be treated as being in such possession of the saidsubject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law, and forbidding all disturbance of such possession until such eviction;and when he proceeds under the proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in subjection (3).
(7)When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the enquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8)If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
(9)The Magistrate may, if he thinks fit, at any stage of the proceedings under section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10)Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate proceed under section 107.
(1)If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession asis referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any breach of the peace with regard to the subject of dispute.
(2)When the Magistrate attaches the subject of dispute,he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908;Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate
(A)shall order the receiver appointed by him to handover the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereforee discharge the receiver appointed by him;
(B)may make such other incidental or consequential orders as may be just.
(1)Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction,whether such right be claimed as an easement orotherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend hisCourt in person or by pleader on a specified date and time and to put in written statements of the irrespective claims.Explanation The expression 'land or water' has the meaning given to it in sub-section (2) of section 145.
(2)The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidences may be produced by them respectively, consider the effect of such evidence take such further evidence, if any, as he thinks necessary and, if possible decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.
(3)If it appears to such Magistrate that such rightsexist, he may make an order prohibiting any interference with the exercise of such right, including,in a proper case, an order for the removal of any obstruction in the exercise of any such right :Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or wherethe right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
(4)When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons,continue with the proceedings as if they had been commenced under sub-section (1) ;And when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section(1) Of section 145.'
(9) I would first examine the question as to the true meaning,scope and ambit of the expression 'dispute' in the earlier part of sub-section (1) of Section 145 in the context of internal aids to interpretation of statutes. Chapter X, in which Sections 145to 148 occur, as part of its division-D according to its title,deals with 'maintenance of public order and tranquility'. The various provisions in the Chapter are preventive in nature intended to ensure maintenance Of public order and tranquility. Division-of this Chapter is entitled 'disputes as to immovable property'.The head-note Of Section 145 in this division is entitled 'Procedure where dispute concerning land or water is likely to cause breach of peace'. The head-note Of Section 146 reads thus :'Power to attach subject of dispute and to appoint receiver'.Head-note of Section 147 is in these words : 'Dispute concerning right of use of land or water'. While first part of sub-section (1)of Section 145 uses the unqualified expression 'dispute', the latter part of this sub-section, which deals with a requisition requiringthe parties concerned in the dispute to attend the Court, and to put in written.statements of their respective daims.the Legislature qualified the expression 'claims' by the words 'as respects the fact of actual possession of the subject of dispute'. If the intention of the Legislature was to use the expression 'dispute'in the first part of the sub-section (1) in the restricted sense of .a dispute with regard to actual possession of the property it was open to the Legislature to use in the first part of sub-section(1) the restrictive words, used in the latter part of it, and if the expression 'dispute' is to be understood in the context of the restrictive expression, used in the latter part of the sub-section. one would necessary have to do violence to the expression'dispute' as also to look for a legitimate reason why the Legislature did not use the common expression in both parts of thesub-section. There can be little doubt that disputes with regard to immovable property may be of various types. The dispute may relate to title. It may relate to any other interest in immovable property, such mortgage rights, tenancy rights and licenseerights. It may also relate to the right to possession, on one basis or the other. Lastly, the dispute may relate as to who was in actual physical possession of the property at a particular point of time and if more than one persons claim that they were in actual physical possession of it, the dispute may further relate as to the portion of which each of parties to the dispute were in actual possession. From the last part of sub-section (1) of Section 145, it is obvious that, whatever other disputes may be incontemplation, the Section is certainly attracted if the dispute relates to actual possession of immovable property and the other condition of the sub-section is satisfied, but is the sub-section inapplicable if there is no dispute with regard to the actual possession but extends, for example, to a right to possession This would postulate that one of the two parties to the dispute is in actual possession, at a particular point of time, but the otherparty, claiming a right to take possession, wrongfully or forcibly,under the colour of title, or on any other legitimate basis, is poised to take the law into its own hands, if necessary, to enforce its right, whether with or without the use of force. Sub-section (2) of Section 145 amplifies the words 'land or water',used in the first part of sub-section (1) of Section 145 to include not only building, markets, fisheries, crops or other produce ofland but also 'the rents or profits of any such property'. If the expression 'dispute' occurring in first part of sub-section (1) of Section 145 is read only in the context of the restrictive words appearing in the latter part of the sub-section, one won't know how to work out the expression 'dispute' in the context of' rents or profits of any such properly'. One could legitimately say that there could never be a dispute with regard to 'actual possession' of 'rents' or 'profits' of any property. The only possible dispute that could occur with regard to rents or profits of a property would be the right to receive the rents or profits or, if already received, the right to retain it.The restrictive expression 'actual possession' in such a case would appear to have no meaning. Sub-section (4)of the Sect
(10) It may be useful at this stage to consider how courts have construed the expression 'dispute' in Section 145(1), asindeed, the conditions which would justify initiation of proceedings under the Section.
(11) Legislation regarding the dispute concerning land etc.likely to cause a breach of the peace, and of the adjustments of those dispute, and by such adjustment to prevent them from culminating in a breach of the peace began with Regulation-49 of1793 and continued, in one form or the other, right to the present provision. The purpose of the provisions has been to bring before the court the disputing parties to ascertain, if possible,which of them was in actual possession, irrespective of any consideration as to which of them was entitled to possess, and to say to the other disputants that the person found in actual possession was to be left in such possession and that such possession was not to be disturbed until that person was evicted in due course oflaw. The object to be attained was the prevention of the dispute culminating into breach of peace. The 'object and method' have throughout remind the same. The true meaning and scope of the successive provisions as indeed their object and conditions for initiation of proceedings, have been subject-matter of judicial controvert since before the tune of the century but it would be sufficient to review some of the leading decisions.
(12) In the case of Krishna Kamni (1908.) 30 Cal. 155 (1) Hill J, speaking for a Full Bench of the Calcutta High Court said thus :
'the two essentials are that there should be a dispute likely to cause a breach of the peace, and that the dispute concerns land etc. The Section does not primarily contemplate cases in which there have already been acts of violence. All the disputants maybe persons of peaceable disposition, but if the dispute is in its nature of such a kind that it is likely,having regard to the known conditions of Society, to lead a breach of the peace, that is enough to warrant the Magistrate's intervention and to give him jurisdiction over the subject of dispute. The object, Ithink, is to take the dispute out of the hands of thedisputants, and to constitute one of them, Whose possession the law will protect, its custodian until the other has established his right (if any) to possession in a civil court.'
(13) In the case of Shebalak Singh Air 1922 Pat-435 (2) a Full Bench of the Patna High Court held that where it was clear on the material that one party was in possession andanother, whose claim to possession was a mere 'pretence',was threatening to interfere with that possession the Magistrate was clearly entitled to resort to special summary procedure of Section 144, if immediate prevention or speedy remedy is desirable. It was further held that Section 144was a 'larger' and 'more general' than Section 145and that Section 145 was of 'limited scope' and applied only where 'there was a danger of the breach of thepeace'. It was further held that if the Magistrate finds that there is 'real dispute' tending to a breach of the peace the Magistrate is bound to institute proceedings under Section 145but when one party was clearly in the 'wrong' and 'threatening' to usurp the right of another who is in actual possession theproper remedy is an order under Section 144 or Section 107 of the Code of Criminal Procedure'.
(14) In the case of Agni Kumar Das : AIR1928Cal610 (3) a Full Bench oi! Calcutta High Court comprising of five Judges, was called upon to consider, inter alia, the following two questions: (i) Do the words 'actual possession' in Subjection (i) of Section 145 mean actual personal physical possession even though wrongfully i.e.that of a recent trespasser in actual physical possession at the time of proceedings under Section 145(ii) Does the word 'dispute' in the same Sub-section mean actual disagreement existing between the parties at the time of the proceedings under Section 145 even though the question as to the right to possession has already been decided by a civil court. The main judgment is by the illustrious Judge Bankin-J, the then Chief Justice, who achieved greater eminence in the years that followed. We are not concerned in the present case with the first question, referred to the Full Bench. The Full Bench answered the second questioning the affirmative. The contest in this case was between the person in 'actual physical possession' and a person, who had been given symbolic possession, pursuant to a decree of a civil court and the contention was that the Section referred to bonafide disputes' and not the cases in which claim of one side is without any 'rational ground' or !s made without any real belief inits validity and the section was intended to make interim provision until disputes are determined by the civil court and that once the civil court has determined the matter the dispute was at anend, and at all events, there was no more scope for a summaryorder, which proceeds not upon title but on mere possession.The learned Chief Justice expressed the view that the words 'dispute likely to cause a breach of the peace' did not refer only to 'bona fide disputes' or only to 'reasonable disputes' and that'the first sub-section is concerned with the maintenance of the public peace and with the reality of the disputes, the danger of disputes. It matters little to a broken head whether it be broken in good faith or bad and the Magistrate can have no preference'.The contention that if the Magistrate had jurisdiction to act, he was bound in law to find possession according to the civil courts decree as against actual possession, was negatived. Suhrawardy-Jin a concurring judgment observed that the term 'dispute' had not been defined in the Code but appear to have been 'clearly and sufficiently explained in the section itself as meaning a dispute which is likely to cause breach of the peace'. 'To add any other Explanationn to the term', added the learned Judge, 'will not, in my opinion be construing the Act but legislating'. He also rejected the contention that the dispute must be 'bona fide' or'reasonable'. The learned Judge further expressed the view that the word 'dispute' is used in its ordinary sense 'meaning a disagreement, struggle, scramble or quarrel for possession of landetc.' Ghose-I, in another concurring judgment, reviewed more or less the entire law on the subject, and also rejected the contention that the word 'dispute' must be read as 'bona fide dispute' and that there could be no dispute merely because the rights had been determined by a civil court. It was observed that where two parties were quarrelling 'over possession' which is likely to on danger public peace there is a ''dispute' under this section.The plain meaning of the word in the section should be adopted and there is no reason why there should be a strained and fictitious meaning given to the words wherethe maintenance of peaces concerned. Mukherji-J, however, struck a slightly different note when he observed, after a review of particularly the entire case law on the subject, that the expression 'dispute' could not mean' all kinds of disputes' but only disputes as to 'actual possession and that the words 'dispute concerning land etc.' had to be understood not quite 'literally' but as a 'dispute relating to actual possession'. For a dispute as to actual possession to be effectively determined it is not enough that there has been a decree determining the rights of the parties, unless it is a decree by which a suit for declaration of right and recovery or confirmation of possession has been dismissed thus putting an end to the plaintiff's right and claim for possession for ever and beyond all controversy, it was observed that in cases of decrees which merely determine the rights of parties, even if they decide that one party is 'entitled to possession' as against the other the dispute 'as to possession' still remains and it is only by delivery of possession in execution of such a decree and in favor of one party as against another that the disputes can be said to be determined beyond any controversy. Such possession, however,must be 'actual or khas possession' and not merely symbolical possession because it is 'actual possession and not a right to possession that Section 145 is concerned with'. In another concurring judgment Commission expressed the view that the word'dispute', used in the Section means actual dispute, irrespective of the merits of the parties' claims to possess the land.
(15) In the case of Fate Muhammad Khan Tiwana Air 1949 Lah 273 (4) the Lahore High Court was dealing with the questions if the Section could be invoked incase where the contending parties were not in actual possession but had been bona fide rights to succeed to the property and there was a serious danger of breach of peace if action was not taken, and if the word 'dispute' meant a dispute without reference to the claims of the contending parties as to their actual possession. The case arose in somewhat unusualcircumstances. Sir Allah Bakhsh Khan Tiwana was lying in a state of coma and the report submitted by the police to the District Magistrate was that the death was imminent, that he had bequeathed his property among his sister, his niece and hiscollaterals, that the management of the properties was in the hands of his agents while the management of his household was in the hands of his sister, but the collaterals were laying claim to the property and both the groups were poised to obtain forcible possession of the estate, and dispossess the sister from the management of the household and that a clash was, thereforee,inviable between rival claimants. The contention before the learned Single Judge, who made the reference to the large bench,as indeed, before the Division Bench, was that the dispute on the existence of which proceedings could be started, must relate to the fact of 'actual possession of the subject of dispute' because the enquiry has to be limited to the claims 'as respectsthe fact of actual possession of the subject of dispute'. The contention was negatived by Munir J. who spoke for the DivisionBench, holding that the word 'dispute' was wide enough to cover' all kinds of disputes', not only dispute as to the fact of possession but also 'disputes as to right to possess or right to own or use immovable property if they are likely to cause breach of the peace'. It was observed that the making of the final order was not dependent upon a party to the dispute establishing his possession and that even if neither party was found in possession and apprehension of breach of peace still existed,the Magistrate could not discharge the proceedings on the finding that possession of neither of the parties was proved, and he could still proceed to make an order of attachment until the Civil Court has determined the rights of the parties or of the persons entitled to possession thereof. The learned Judge expressed the view that there was no warrant for 'restricting the plain meaning of the word 'dispute' to limit its application only to disputes as regards the fact of possession as distinct from disputes relating to right to possess and that disputes relating to the right to possess are obviously within the meaning of Section' because of the language employed in sub-section (4) of the Section. It was observed that the plain intention of the Section was that though the dispute 'may relate to or arise out of the right to possess', the Magistrate in making the final order' must only look to the fact of possession and not to the right to possess'. It was further observed that to hold to the contrary would be unduly 'straining the language of the Section and importing into it words that do not exist'. The High Court, thereforee, concluded that 'all disputes whether they arise out of actual possession or attempted possession or out of use of immovable property, are covered by the Section, if they were likely to cause the breach of the peace.' The preliminary order, as well as the order attaching the property, were accordingly upheld.
(16) A large number of other decisions of the variousCourts, including the highest court, were cited but these cases,by and large, dealt with fact situations, which did not call for decision of the question as to the meaning and scope of the expression 'dispute' and a restricted meaning of the expressionwas, thereforee, assumed in most of those cases because of the context in which the cases arose. While it may, thereforee, be unnecessary to review each of these decisions, it would be proper to deal with some of these decisions, notably those by the highest court, which contain useful observations, eventhough not directly on the question, but may help in the determination of the question. In the case of Rajpati (5), the Supreme Court was concerned with the limited question that once the Magistrate recorded satisfaction, as to the existence of breach of peace in the preliminary order, it was not necessary that the breach of peace should continue at every stage of proceedings and a High Court in revision would not go into the sufficiency or otherwise of the material on the basis of which the satisfaction was based. The Court relied on an earlier decision of the Court in the case of R. H. Bhutani (6)in which the Court had observed that the Section required that the Magistrate must be satisfied before initiating proceedings' that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace.' In the case of Mathuralal (7), the question before the Supreme Court was if after the attachment made on the ground of emergency the Magistrate's jurisdiction to proceed with the enquiry under Section 145 came to an end. The question was answered in thenegative. This decision is, however, of considerable assistance in understanding the scheme of the provisions, particularly, in the context of the evolution of the preventive provisions because that Judgment is based on a comparative study of theprovisions, both before and after the amendment of the old Code in 1955, and as they now stand under the new Code. the court observed that Sections 145 and 146 constitute a scheme for the resolution of a situation where 'there is a likelihood ofa breach of the peace because of a dispute concerning any land or water or their boundaries.' On a comparative study of the two provisions, as they stood before 1955 and after 1955,under the old Code, and as they now stand under the Code of1973, it was held that the jurisdiction does not end as soon asan attachment is made on the ground of emergency and that the provisions of the Section of the new Code 'are substantially the same as the corresponding provisions before the 1955 amendment of the old Code'. In the case of Harijan Yellaiah and another (8), a Division Bench of the Andhra Pradesh HighCourt held that the pendency of a civil suit between the parties did not take away the jurisdiction of the Magistrate to initiate proceedings if the conditions of the Section were satisfied. Itwas, however, observed that the Magistrate should not lightly proceed in the matter, when the same is pending in the civil court, particularly, if the civil court has made an order in regard to the possession even by way of interim injunction.The same should be given due weight and it is expedient that the criminal court should uphold the order of the civil court and it makes no difference whether the order of the civil Court was passed before or after the initiation of the proceedings before the Magistrate. The Court went as far as to hold that the criminal court should better drop the proceedings initiated under the Section if there is an order of injunction issued by the civil court in regard to the possession. In the case of Ashrafila (9), a Single Judge of this Court held that there must be good basis or foundation for the preliminary order which may be a police report and the Magistrate need not repeat in the order what is stated in the police report. It was further observed that the order of a Magistrate prevails over an interim order of the civil court but final order of the civil court wasbinding. The contention that once the matter had been taken by one of the parties to the civil court, before or after the Magistrate order, the Magistrate must hold his hands off wasrepelled. In the case of Mohd. Abbas and another (10), a learned Single Judge of the Patna High Court, relying on the decisions of the Supreme Court, in the case of R. H. Bhutani(supra), held that mere failure to state the reasons when the Magistrate was satisfied that there was an apprehension ofbreach of peace was nothing more than an 'irregularity' and that the High Court in exercise of its revisional jurisdiction would not go into the question of 'sufficiency' of material although if the Magistrate has not mentioned at all that there was any apprehension of breach of peace the omission wasfinal. In the case of Partap Singh (11), a Division Bench of the Punjab High Court, inter alia, held that Section 145 was designed to protect deprivation of possession by persons taking law into their own hands and has no concern with determination of any legal right to possession. It does not seek to perpetuate illegal possession but merely directs the subject to assert their rights in accordance with law. The Section itself is indicative of the difference between actual possession and right to possession maintained therein. It was further held that therewas no doubt that mediate or direct possession is on any interpretation actual possession within the meaning of theprovision. It was, thereforee, held that mediate possession of the Government through an allottee was actual possession within the contemplation of the said provision and that when anallottee, who had once been put in possession and dislocated,seeks to recover possession, such allottee cannot be allowed to take the law in his own hands and if the burden of his act fall son peace, Magistrate can certainly step in. Such an allottee is as much bound to assert his right to recover possession inaccordance with law as any other person. He must also recover possession through channels of law and mere fact of his being an allottee does not confer any such privilege as to enable him to break the law. These observations were, however, made in the context of the power to make the final order and not asto the conditions for initiation of proceedings under the section. In the case of Padmaraju Subba Raju and others (12), a division Bench of the Andhra Pradesh High Court, while dealing with a final order under the provision, hel that the object of the provision is to prevent breaches of peace pending a settlement of the rights of the parties in a civil court. The necessary condition under the Section, which confers jurisdiction ona Magistrate to make an enquiry, is that he should be satisfied from a police report, or other information that a dispute likely to cause a breach of peace exists concerning land or water and his jurisdiction to make an enquiry is confined only to the fact of actual possession of the subject of dispute. He has no jurisdiction to adjudicate upon the rights of the parties to the possession for such questions are within the exclusive jurisdiction of the civil courts. In the case of Tikuda (13), a Division Bench of the Rajasthan High Court was concerned with an order of attachment and held that if a dispute about immovable property was pending before a civil court, the Magistrate should not lightly proceed in the matter. He should weigh and consider whether there is a real apprehension of the breach of peace and if there is such an apprehension, whether the same cannot be averted by proceedings under S. 107, of the Code but the jurisdiction of the Magistrate is not ousted simply because a' suit is pending. In such a case, the Magistrate must proceed with care and caution, after ascertaining full facts from the party which moves the Court. In the case of Jagarnath Prasad Bhagat (14) the Patna High Court, while dealing with the final order, observed that the proceedings are summary' proceedings calculated to prevent a breach of the peace and with that end in view, a Magistrate is required to decide purely the fact of actual physical possession irrespective of the merits of the claim of any of the parties to a right to possess the subject of the dispute and that it was not the function of the Court to go into complicated question of title and determine for himself who has got title to the disputed property, even though it is not that under no circumstances should a Magistrate advert to the question of title and that title in any shape or form is entirely irrelevant and of no value. In exceptional cases, title may be of value in appreciating the evidence of possession and reliance was placed on a Full Bench decision of that court in the case reported as : AIR1949Pat146 : In the case of Bhinka and others (15), Supreme Court was concerned with the question as to the true effect of a final order made under theprovision and held that under Section 145(6) of the Code, a Magistrate is authorised to issue an order declaring a party to be entitled to possession of a land until evicted there from induce course of law and observed that the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserve that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace and with that object he makes a temporary order irrespective of the rights cf the parties which Will Be have to be agitated and disposed of in the manner provided bylaw. The life of the order is co-terminus with the passing ofa decree by the civil court and the moment a civil court makes an order of eviction, it displaces the order of the criminal court.Supreme Court relied on the decision of the Privy Council in the case of Dinomoni Chowdhrani, (16) and quoted with approval, the observations of the Privy Council to the effect that these orders are 'merely police orders made to prevent breaches of the peace. They decide no question of title.'
(17) The decision of the Calcutta High Court in the case of Agni Kumar D'ass (supra) and of the Lahore High Court in the case of Fate Muhammad Khan Tiwana (supra) were perhaps the only cases involving the question as to the construction of the expression 'dispute'. The decision of the Calcutta HighCourt, which is otherwise entitled to respect, as indeed, considerable weight, is really of little assistance in the context in which the question of construction arises in the present case because the question was considered in that case in the context of the fact that a decree had already been made and symbolic possession had been delivered in execution of it and the question that really fell for determination was, if notwithstanding these circumstances, it could be said that there was a 'dispute with regard to immovable property'. There are no doubt references in some of the judgments to possession, as also to right to possess, but that was not the real question before the Court.The real question was if actual dispute regarding possession survived a decree followed by symbolic possession. The case of Fate Muhammad Khan Tiwana(supra) on the other hand, directly posed the question if the expression 'dispute' was to be given a restricted meaning to be confined to disputes relating to physical possession, as distinct from the right to possession, even though it must be conceded that the decision turned on the construction of the language of the statute without the aid of any of the precedents, and none was cited by either of the parties. It is no doubt true that the decision is of a foreign court but whatever maybe its effect on the binding nature of the decision, it ought not to be ignored so long as it illumines indicial path in its quest for truth, irrespective of the source of light. I have, thereforee,no hesitation in holding that the expression 'dispute' could not be given a restricted meaning and must extend not only to a dispute with regard to actual physical possession but also a dispute as to right to possess, as distinct from the dispute as to actual physical possession, even though its meaning may not be stretched as far as has been done by the Lahore High Court, and I say so with utmost respect, partly because the fact situation in the present case does not necessitate such wide construction of the expression 'dispute'.
(18) But having regard to the difficulty of construction of the word 'dispute' and the paucity of direct decision on the question, except the decision of the Lahore High Court, I would not rest my decision on this aspect of the case on the wide construction of the word 'dispute', because even if the word' dispute' is narrowly construed, the conditions for exercise of jurisdiction and for the preliminary order were satisfied. MPSIC was admittedly & tenant of the premises in actual physical possession of it up to a certain date, and I am not concerned at this point of time as to the precise date. that contractor's men were admittedly carrying on furnishing work at the instance of one or the other of the Government Corporations and this work was allegedly suspended when the stay orders were received. The Corporations then suddenly find that one fine morning some persons, having no connection with either of the Corporations, were in possession and some work was going on neither of which they had authorised. It is in that situation that the officers of the Corporation decide to assert their right to maintain their lawful possession or to put it differently, to restore the possession of the Corporations, which according to their reckoning, was bound to be resisted by those in possession.If the Corporation in the situation either challenges the authority of those in actual physical possession, either as trespassers,or as perpetrators of fraud, by themselves or in collusion with others and claims the right to maintain their possession or assert their right to possession, the dispute would nevertheless still relate to actual possession of the property, it being confined to the disputed nature of the possession of persons in actual physical possession as an invasion of the right of the party disposed from it and the dispute would not cease to relate to actual physical possession of the property merely because owing to the constraints inherent in the status of a public servant or an officer of a Government Corporation, the matter rested with the exchange of claims and counter claims and of hot words and was confined to the region of cold war rather than breaking into the premises and/or of skulls. That is probably what would have happened if the party dispossessedwrongfully, forcibly or otherwise, happened to be a 'privateperson rather than a government organisation or a juristicperson. But I am unable to see how merely for that reason whatis essentially a dispute with regard to possession of immovable property and within the provision, ceases to be so.
(19) Thus, both on principle and preponderance of precedent, the first condition for taking cognizance under the Section was fully satisfied in that on the material before the learnedMagistrate, it could be reasonably inferred that there was a dispute relating to immovable property within the meaning of the Section.
(20) Whether the second condition for initiation of proceedings was satisfied or not, hardly presents any difficulty. The second condition postulates the existence of a situation that is likely to cause a breach of the peace. It envisages a potential threat of 'breach of peace. Actual disturbance of peace is nota pre-condition. It is also not necessary that there has been any violent act, as was observed by Hill, J., in the case of KrishnaKamani (supra), parties may be of a 'peaceable disposition',there may be no violence and yet if having regard to the 'conditions of society', there is a situation in which breach of peace was likely to be caused, the second condition is fullysatisfied. The report of the police as also the kalandara, hardly leave any doubt as to the allegation that the dispute was likely to cause a breach of the peace. According to the material, the Government Corporation, which had been in possession of the premises in exercise of their undisputed right, suddenly found that they had been ousted from possession, whether wrogfully,forcibly or by a trick played in collusion with their staff orotherwise. The officers of the Corporation have instructions and have come to Delhi to assert their right to the possession of the premises and to 'maintain' their possession. The petitioners on the other hand, claim to be in possession as a bona fid prospective purchaser, who has already paid almost the entire allegedly agreed consideration, is determined to resist any interference with its rights to continue peaceful possession until evicted in accordance with law. If on this material, the Magistrate feels that he is satisfied of the potential threat of breach of peace, it would be difficult to find fault with it, having regard to the known conditions of society, the characteristics of the situation, and once there is material, which is relevant to the satisfaction of the Magistrate, and the Magistrate records his satisfaction, this Court, would not readily interfere, whatever may be this Court's own disposition or assessment of the objective conditions, as disclosed by the material.
(21) An interesting point was raised on behalf of the petitioner that the other party being,' a juristic person, and that too a Government Corporation, both of which were bound toact in accordance with and in aid of law, could not be conceived or be capable of taking the law into their own hands or to create a precipitate situation which may pose a threat or breach of peace and that such a conduct could only be associated with a natural person. This contention, however, suffers froma number of fallacies. In the first instance, how a party to the dispute, whether a juristic person or a natural person, may eventually act in a given situation is not relevant to determine if the situation has the potential to cause a breach of the peace.Secondly, the potential threat need not come from the parties to the dispute, whether a juristic or a natural person, so long as there are others who are willing or poised to take up cudgel for the contending parties. Thirdly, what is conveniently ignored is that even a juristic person, like a Corporation, acts through the natural persons, whether its principal officers, employees or agents. To hold it otherwise would mean that in case of disputes of this nature between two corporate bodies, the police and the magistracy would be merely mute spectators and such an interpretation would render the provision nugatory. Lastly,a mere peaceable disposition or an obligation whether of a Government Corporation or any other juristic or natural person to strictly remain on this side ofthe law would not, by itself deflect from the possibility of a breach even though a mere probability may perhaps be insufficient. One may reasonably expect Government Corporation or a public servant or even other law abiding citizen to abstain from taking the law into its or his own hand or to assert a right except in the manner known to law but if such persons feel exercised over a situation in which they suddenly find that they have been grossly wronged or they have been wrongfully, illegally, forcibly of otherwise deprived of possession of immovable property over which they assert an undoubted legal right, it would be difficult to deny the existence of a situation which has the potential of a threat of breach of peace.
(22) Whether the preliminary order, even if otherwise justified on the material and on the satisfaction of the Magistrate as to the existence of the twin conditions to take cognizance, is nevertheless vitiated on the ground that the order does not state 'the grounds of his being so satisfied', is the next question that calls for decision. The duty to give reasons may be implied orexpress. It may be implied in the very nature of the power In exercise of which an order affecting rights or interests of a citizen may be made in judicial, quasi-judicial and even in administrative proceedings. The principle that imposes the implied duty to give reasons has a three-fold object. The duty constitutes an inbuilt safeguard against arbitrariness in the exercise of power and ensures application of mind. Secondly, it is intended to inform the affected person as to why the power has been exercised in the manner it has been done. Lastly, it is intended to make any further judicial scrutiny of the order of the decision effective and meaningful for, in the absence of reasons, there would be a handicap in any judicial review of the order. The implied duty to give reasons on the basis of the well-established principle of law may, and is often, given legislative recognition by an express provision in the Statute itself, which confers the power to make an order or a decision when it provides in express terms that the authority making the order would state its reasons in the order itself. The duty has, in the case of thisprovision, been made an express obligation because the Section enjoins that the Magistrate would make an order in writing stating 'the grounds of his being so satisfied'. When there is,thus, a statutory duty to set out the grounds of satisfaction, it is neither sufficient to merely repeat the provisions of the laws to the existence of a dispute and that it was likely to cause.a breach of peace nor is it necessary to give elaborate grounds.Having regard to the object behind the requirement, what is fundamental is that the decision or the order is based on relevant grounds and whether or not such grounds are spelt out in the body of the order or elsewhere or not at all is more a matter of form so long as the material on record and the contemporaneous action of the authority leave no doubt that the order or thedecision was arrived at after an application of mind and there were grounds which would justify the order or the decision,having regard to the legal requirements. The mere failure to set out the grounds or the reasons in the order itself in such a case would be a curable defect or irregularity which would be incapable by itself of vitiating the order or the decision.
(23) In the present case, the cryptic order, no doubt, does not mention the two requirements of the Section but a reference to the more elaborate notice and/or order of the same date, as also the police report and the kalandara, seen in their totality,however, leave no manner of doubt that the order was the result of application of mind and the objective situation provided the necessary ground for the satisfaction of the Magistrate, both as to the existence of ai dispute concerning immovable property,and from the attitude of the parties and the position that they had taken up and the known conditions of society that the situation had a potential for. a, breach of peace calling for initiation of preventive action under the provision. It would no doubt be ideal for a court to spell out the grounds or reasons for the orders in the body of the formal order itself but to vitiate an order for such a failure would be taking too hypertechnical view of the law and giving too much importance to the form of the order rather than the. substance of the matter. There was no doubt some controversy if the defect of the cryptic order could be cured with reference to either the more elaborate notice and/or order of the same date, which has been quoted above, as well as the police report and the kalandara, but I do not see any reason why the cryptic order must be torn out of context and scrutinised in isolation and not read, analysed and understood in the totality of the contemporaneous material before the Court and the formal notice and/or order issued by the learned Magistrate.So examined, there is little doubt that the Magistrate was satisfied on both the counts and the material before him supplied him the grounds and the reasons for the satisfaction and I have already held above that the two conditions were fully satisfied on the material before the Court. I have, thereforee, no hesitation in holding that in spite of the defective form of the cryptic order,the decision to initiate proceedings did not suffer from any Legal infirmity which may vitiate the initiation of proceedings or the preliminary order based on it.
(24) A contention was raised on behalf of the petitioner that even if the preliminary order may, on some reckoning, be considered valid, having regard to the requirements of the law,the proceedings should nevertheless be quashed in view of the admitted pendency of proceedings in the civil court, including the proceedings filed by the petitioner more or less contemporaneously with the initiation of the proceedings in the MagistratesCourt. It is, however, well settled that mere pendency of civil proceedings regarding the same matter would not oust the jurisdiction of a Magistrate's Court even though the fact that proceedings are pending in respect of the dispute relating to immovable property in a civil court must be considered by the Magistrate,whether the proceedings in the civil court were initiated before or after the proceedings in a criminal court, and a Magistrate must be circumspect in making orders in such a situation but that does not impinge on the jurisdiction of the criminal court to deal with the matter. The two proceedings are distinct having very well defined and delineated scope. The criminal proceedings are preventive in nature and purely summary in character.Proceedings in a civil court are essentially concerned with the rights of the parties and involve inordinate delay even thought simple suit for possession without reference to title, may perhaps be closer to the scope of proceedings u/s 145, but eves such proceedings take considerable time. The mere tendency of the civil proceedings, thereforee, would not be a ground to set aside the preliminary order, even though, having regard to the high stakes involved, the status of the parties arrayed against each other and the allegations and counter-allegations of undueinfluence, it is reasonable and proper that all the proceedings are transferred to one court in the interest of expedition.
(25) Whether the order of attachment and appointment ofa receiver was justified, is the next question that calls for decision, and is a question, to my mind, which must be answered,on all reckoning, in the negative. The initiation of proceedings and the preliminary order would not ipso facto justify deprivation of possession of the party admittedly in actual physical possession, irrespective of the nature of that possession, and irrespective of the fiendish, wrongful, forcible or illegal manner in which a party may have come by such possession. The attachment could be made under Section 146(1) at any time after the making of the preliminary order if the Magistrate considers the case to be, 'one of emergency', or in oilier situations with which I am not concerned in the present case. Reading the two sections together, and that is how they must be read, it is obvious that the conditions for the making of the preliminary order areno co-extensive with the conditions which would justify the order of attachment, if the order of attachment is to be based on the existence of or in the situation which is one of 'emergency'.An 'emergency' is not an ordinary exigency. It is the existence of an emergent condition, a situation of urgency which calls for swift action and does not brook any delay. Mere existence of a dispute concerning land or the existence of a situation in which there may be likelihood of breach of peace do not by themselves,constitute such an emergent condition. There must be something more to it which calls for immediate action and that immediate must justify not merely the initiation of proceedings or a requisition to the parties to come before the Court, but the attachment of the property itself so that it is put beyond the reachof the feuding parties. Such a situation could not be said to have arisen in the present case either on all the material before the court, or on the terms of the Magisterial order itself. I have already quoted the cryptic order, as also the more elaborate order and/or notice, and have also quoted the relevant portions of the police report and the Kalandara on which it is based. None of these give any indication whatsoever of the emergency or of any ground how the emerging situation could be said to be one of urgency. The cryptic order merely does lip-service to the provision when it says that the Magistrate considers the case to be one of emergency, leaving one no wiser as to how situation is one of emergency, when there is no reference to it either in the police report or in the kalandara. The notice and/or the order of the same date, which is a little more elaborate makes matters worse, if it makes any change at all. It purports to justify attachment and the appointment of a receiver on the ground 'of element of conspiracy and deceit' and because the property was of considerable value. These are wholly irrelevant for the purpose of determining or indicating the emergency nature of the situation. One of these may be a moral issue but would have no legal relevance. The other may be important because it highlights the stakes involved but that by itself would not justify an inference of the existence of anE emergency conditions if the expression 'emergency' is to havea real meaning. It may perhaps have weighed with the learned Magistrate that, having regard to the manner in which the Corporations had been deprived of possession by practice of fraud on it, and having further referred to the high stakes involved and the fabulous valuation of the property because ofits geographical situation, it was morally justified to undo what a trespasser had done, but, unfortunately, that could not have satisfied the onerous condition of Section 146, whatever else may be the effect of these circumstances. A contention was raised that the order of attachment could not be made by a composite order as has been done in the present case but I see no difficulty in both the preliminary order and the orderof attachment being made at the same time so long as the preliminary order is made first and is followed by the second.In view, however, of the conclusion that the order of attachment could not possibly have been made in the situation that existed on the material, it is unnecessary for me to carry that contention any further. There is, thereforee, no escape from the conclusion that in the face of the orders of the Magistrate,whether or not the cryptic order is read by itself or is reading the context of the more elaborate order and/or notice, The police report, and the kalandara, on which it is based, the orderof attachment is wholly without jurisdiction, even though theinitiation of proceedings and the making of the preliminaryorder was based on the satisfaction of the learned Magistrate.The order of attachment, and appointment of receiver is, thereforee, liable to be quashed.
(26) But should the order of attachment be set aside unconditionally, is the further question that must be considered.The property is decidedly very valuable. The stakes are admittedly very high. The property is situated in the heart of commercial New Delhi. The likelihood of the petitioner, is put back in possession, inducting someone else into it or Otherwise transferring his interest in the property or parting with its possession, could not be altogether eliminated. If the interest of the third party gets involved, it is bound to create furthercomplications. It would be controversial if any order that maybe made in the present proceedings before the Magistrate could bind and be carried out against any third party. Such likelihood may not amount to an emergency situation and I have held above that to be so, but it certainly is not irrelevant in considering the question if appropriate conditions should be imposed in setting aside the order of attachment so as to ensure the preservation of the property and the status quo ante as it existed when the order of attachment was made so that no third party interest gets involved and there are no further legal complications in the situation, which may he capable of defeating the object of the proceedings. A mere restraint order or the petitioner would be insufficient unless it is amply booked by adequate security. It would be reasonable and proper that the possession of the property is restored to the petitioner subject, however, to the petitioner giving an undertaking that the property would be resorted in accordance with the terms of the order, that may be made in the proceedings, and the petitioner furnishes adequate security in the sum of Rs. 5 lakhs, to the satisfaction of the Registrar of this Court, after notice to the Government Corporations.
(27) In the result, the petition, in so far as it challenges the initiation of proceedings, and the preliminary order, fails and is hereby dismissed. The petition, in so far as it is directed against the order of attachment and appointment of receiver,succeeds and the aforesaid orders are quashed, subject to the conditions of the undertaking and the security mentioned above.The impugned orders are modified accordingly. The security may be furnished within 2 weeks during which period the order would remain in abeyance to enable the parties to take further proceedings, if they so desire.
(28) In the course of the proceedings, allegations and counter-allegations of undue pressure by one or the other of the parties were made either emanating from 'money power',which was attributed to one of the parties, or of pressure from the centre of authority, attributed to the other. The proceedings no doubt have unusual characteristics, having regard to the stakes and the status of the parties involved, and although I have held that the initiation of proceedings and the preliminary order were justified, I have a suspicion that even so, with somewhat similar situation involving private parties on bothsides, proceedings under Section 145 would not perhaps have been initiated, and the order of attachment in any event would never have been made. I, however have no doubt in my mind that even so, the courts, now seized of the proceedings under Section 145, as also of the two suits, would deal with the matters with expedition, as also in an impartial manner.without in any way being influenced by one or the other of the above considerations. It would nevertheless, be reasonable and proper that, without implying any reflection on the presiding officers concerned, the proceedings, both in the criminal court, and in the aforesaid suits, are transferred to the District and Sessions Judge. I direct accordingly. The District andSessions Judge would conclude the proceedings with maximumexpedition, uninfluenced by any observations that may have been made by this Court on the merits. Parties are directed to appear before the learned District and Sessions Judge on September 27, 1984.
(29) Before parting with this case, it is necessary to all attention to the proliferation of proceedings u[s 145, as also in civil courts, arising out of forcible and wrongful possession of private immovable property in a variety of situations which, asindeed, the sordid manner in which such property is being illegally possessed and dispossessed, with or without the collusion of the variety of authorities concerned with the enforcement of law and order, have almost assumed the proportion of a scanded. For reasons which are obvious, the task of recovering possession of immovable property from tenants, licensees, trespassers and other, otherwise than in due course of law in Delhi, as indeed, in the rest of the country, with the aid of undue pressure and assistance from one quarter or theother, involving a variety of interests, has almost developed as an industry. This is what I said of the sorry state of affairs in a recent cases (17).
'BEFORE parting with this matter, it is necessary to call attention to the increasing resort to the criminal court system in disputes relating to immovable property to which I made a passing reference in the earlier part of this order. Market value of immovable property has increased manifold in Delhi during the last decade or so. Possession of immovable property is an important attribute of its ownership and the value of possession of immovable property atone has increased by astronomical proportions. Vacant possession of immovable property adds an entirely new dimension to any transfer in its title. It is, thereforee, not surprising that there is extensive litigation with regard to the immovable property, including its jpossession, between landlords and tenants, between landlords and licensees,between co-owners of the property inter so, as also between owners of the property and persons who are otherwise in peaceful possession of it and this frequently involves not only the owners but the intending buyers of such property. It is not uncommon for the intending buyers to agree to buy the property on their own terms on the condition that they would be able to adequately deal with the occupants, whatever may be the nature of theiroccupation. It is well known that for a variety ofreasons, the civil court system has ceased to beeffective in giving relief in such cases partly because of the heavy costs but mainly because of the inordinate delay involved which operates as a virtual denial of justice. In any event, the protracted proceedings in civil courts have ceased to be even an instrument of mild pressure on the wrongdoer. The result is that the civil litigants are fast losing faith in the process of the civil court and there is a growing tendency to invoke the jurisdiction of the criminal court system or of the police intervention so as to cut costs as also ensure expedition. This may be legitimate so long as a dispute constitutes cause for criminal action and legitimately falls within the competence of the police administration and of the jurisdiction of a criminal court. there is, however, a danger that there may be attempts to invoke the intervention of the police and to invite the process of the criminal court even in cases where such invocation or intervention may be wholly uncalled for and it is in such cases that there is a real danger of the unscrupulous litigant gaining access to the police and criminal court system by devious methods, not excluding the distortion offacts, perjury and even manipulation of the police as well as the magistracy. Unfortunately during the recent years, it has generally gone round that it is comparatively, easy to manage the police at certain levels and to even manipulate the magistracy, to an extent. Such an impression, if wellfounded, would certainly call for introspection among the litigants, as well as the lawyers and strict vigilance on the part of the police administration, as well as the courts, including the magistracy and the courts to which they are subordinate, in dealing with this class of criminal litigation.'
(30) While it is neither necessary nor proper for me to rule as to what may have happened in the present case, as to how things were managed, and as to who played what dirty part in doing what is alleged to have been done, the observations made by me in the earlier case, as indeed, elsewhere with regard to the misuse of the police powers and the criminal court system, by and large, are reinforced. However, a mere condemnation either of the system or of the conduct of one or other of the parties is not sufficient. The situation calls for prompt legislative action, apart from executive and judicial streamlining of the procedure and practices. Criticism has to be constructive and there is, thereforee, need to make concrete suggestion as to the best way to solve the problems that are thrown up. However, some suggestions for the consideration of the authorities that be;The desirability of legislation dealing with unauthorized occupation of private premises on the lines of the Public Premises (Eviction of Unauthorised Occupants') Act. to be ad-ministered by the Rent Controllers andor the Rent ControlTribunals, should be considered. Alternatively, the procedure and practice in suits, and the law relating to court fees in suchmatters, should be suitably modified so that all suits for recovery of possession from persons in illegal occupation of private property do not attract any court fees, and are heard and decided in a summary manner and proceedings in such suits, as indeed, proceedings under Section 145 of the Code,are not triable by any court subordinate to the District and Sessions Judge. The provisions of Section 145 and 146, as they stand at present appear to be too heavily weighed in favor of a trespasser, and even if liberally construed seem to provide an incentive to take the law into one's own hands rather than take the matter to a court in the first instance. The provisions deserve a second legislative look to make them less offensive.Procoadings us 145 should not be dealt with by any police officer below the rank of a DCP.
(31) I must also express my deep appreciation of the assistance rendered by eminent counsel on both sides, and of the assiduous research but for which, a proper appreciation of the rival points of view would not have been possible. It must be recorded particularly in the case of Mr. L. R. Gupta, for the additional reason that he presumably made his doubt in the conduct of a criminal case in the present proceedings. Learned counsel for the parties referred to a large number of cases. I have dealt with some of these which deserved special mention.But it is unnecessary to burden this judgment with a discussion of the other cases for a variety of reasons.
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