J.D. Jamm, J.
(1) This revision petition is directed against preliminary order passed by Sdm New Delhi, u/s 145(1), Code of Criminal Procedure ('the Code') on 11th May 1984 thereby assuming jurisdiction to decide the question of possession with respect to premises No : N-32 Jangpura Extension, under the provisions of the said Section. The said order was made by the Sdm on the basis of police report dated 21.1.84 made by police Post Jangpura and the material accompanying it.
(2) The facts leading to the aforesaid action of the learned Sdm in brief are that a double room tenement No : 32 (A&B;), Block 'N', Jangpura Extension, was allotted to Charanjit Singh Rekhi s/o Shri Nand Singh Rekhi by the Estate Office, Govt of India, vide letter dated 8th/21st Sept, 1951. The said allotment was made consequent upon his eviction from quarter No : A-23/214, Lodi Road, which he was occupying earlier, on 11.9.51. Subsequently the Managing Officer/ Settlement Officer, Government Built properties,
favor of Charanjit Singh. The said documents were duly registered in the office of the Sub-Registrar, New Delhi, on 18-1-1984. In the meanwhile, however, Charanjit Singh Rekhi entered into an agreement to sell the aforesaid premises to Smt. Renu Sachdeva (the present petitioner) on 25,11.83 for Rs. 3,00,000.00. Shri Rekhi also executed a Special Power of Attorney in favor of Smt. Renu Sachdeva empowering her to manage the property and to represent him to various departments and sign documents etc. on his behalf except that she could not sign any document of sale or conveyance with regard to said property. In the Special Power of Attorney it was specially stated that possession
(3) A perusal of the Kalendra submitted by Asi, R.K. Ranga to the Sdm on 21.1.84 for initiation of proceedings u/s 145 of the Code would reveal that the said Asi proceeded to the property in dispute on receipt of a telephonic message from the police control room at 4.20 P.M. that a quarrel was going on, at Premises No: N-32 Jangpura Extension, opposite Eros Cinema. On reaching there he found S/Shri Subhash Narula, a properly broker, Smt. Manjit Rekhi w/o Shri Charanjit Singh Rekhi, Harjit Singh, Surendar Sachdeva, husband of Smt. Renu Sachdeva (all called Party No. 1 collectively Along with Charanjit Singh Rekhi and Smt. Renu Sachdeva in the Kalendra) and S/Shri T.S. Rekhi S.S. Rekhi, both_ sons of Sh. Nand Singh Rekhi and H.S. Sarna, son in law of Nand Singh Rekhi, present in the drawing room of the said house. A little later Commander B.S. Rekhi s/o Nand Singh Rekhi too arrived there (all of them collectively termed as Party No. 2 in the Kalendra) Both the parties were quarrelling with each other and were asserting their claim of ownership over the property in dispute. Both the parties were out to fight and commit breach of peace. So, apprehending breach of peace on their part the police turned out both the parties from the house and put their own lock and seal on it.
(4) It is further stated in the Kalendra that on scrutiny of documents and inquiry conducted by the Asi it transpired that the property in question had been allotted to Charanjit Singh Rekhi by the Deptt. of Rehabilitation on 8.9.51 and that he had entered into an agreement dated25.11.83to sell the same to Smt. Renu Sachdeva and also delivered possession thereof to her excepting one room which was allowed to remain in the occupation of Harjit Singh, who was already occupying it as a care-taker on behalf of Charanjit Singh Rekhi. So, Smt. Renu Sachdeva had been in possession of the premises in question since then. However, on 21.1.84 when Harjit Singh was vacating the room in his occupation in order to shift elsewhere and he had removed some of his house-hold effects from the said room, S.S. Rekhi, T.S. Rekhi and H.S. Sarna arrived at the scene and asserted that they were co-owners of the property in dispute as the same belonged to the joint family comprised of eleven members including them and Charanjit Singh Rekhi and as such the latter alone was not competent to sell the same or pass on its possession to Smt. Renu Sachdeva, The Asi further stated that household effects belonging to Harjit Singh and Smt. Renu Sachdeva, which inter alias comprised beds, sofa set, chairs, table, refrigerator, almiraha, a cycle and other tidbits were lying in the said house and the same were allowed to remain in the house when it was locked and sealed by the police. Along with the Kalendra the police submitted the statements of S/Shri Surinder Sachdeva, Harjit Singh, Subhash Narula and Smt. Manjit Rekhi, which he had recorded at the spot. He also annexed thereto the statements made by Commander B.S. Rekhi, who as stated above, had reached there soon after the arrival of the other members of Party No. 2 and Shri H.S. [Sarna. Both the statements appear to have been written by them in their own hand.
(5) The stand taken by the first party including Shri Harjit Singh precisely was that Smt. Renu Sachdeva had been in possession of the premises in question since 25.11.83 when the same was delivered to her by Charanjit Singh Rekhi pursuant to agreement to sell and Harjit Singh was occupying only one room as a caretaker on her behalf. This accomodation was given to him because he had friendly relations with Charanjit Singe. Rekhi and had been earlier residing there in his capacity as caretaker on behalf of Charanjit Singh Rekhi. On the contrary the second Patty took the stance that the premises in question belonged to all the legal heirs of Nand Singh Rekhi and Charanjit Singh Rekhi was just a benamidar owner on their behalf. According to both Commander B.S. Rekhi and H.S. Sarna the premises in question bad been let out to a tenant and B.S. Rekhi was managing the property. However, after the tenant vacated the premises sometime in 1982 Harjit Singh was allowed to occupy the same as a care-taker on account of his friendly relations with Charanjit Singh Rekhi and other members of the family. In other words, Harjit Singh Rekhi was occupying the premises in dispute on behalf of all the members of the joint family. However on 21.1.84 they learnt that Harjit Singh was vacating the premises in question and, thereforee they reached there and found Shri Sachdeva and Harjit Singh etc. present there, who enacted a drama that the property in question had been sold to Smt. Renu Sachdeva. Both of them further asserted that one room on the first floor was throughout in the joint possession of the family and was under their own lock. As for the household effects of Smt. Renu Sachdeva they contended that the goods had been placed inside the house on that very day.
(6) The learned Sdm did not initiate proceedings u/s 145 uptil 11.5.84 although the record of proceedings would show that both the parties appeared before him as far back as 30.1.84. In the meanwhile, an application was moved by Smt. Renu Sachdeva on 25.1.84 complaining of forcible entry into the premises by the second party on 21.1.84 and wrongful act of police in dispossessing her and sealing the premises. She, thereforee, prayed for restoration of possession of the premises to her. The Sdm called for the report of the Sho with regard to the same. The second party too moved an application dated 3.2.84 praying that the vacant possession of the premises be delivered to them. Their stand, inter alia, was that Harjit singh was occupying the premises as caretaker on behalf of the entire joint family and not Charanjit Singh Rekhi alone who and fraudulently entered into an agreement of sale in respect of the said house with Smt. Renu Sachdeva. Still later an application was made by Harjit Singh on 24.2.84 stating that he had been residing in the house in question since April, 1982 on behalf of its owner Charanjit Singh Rekhi and that the police intervened in the dispute between the parties which took place while he was shifting there from Along with his belongings but his household effects kept lying inside the house as the premises had been seized by the police. So, he prayed for permission to remove articles belonging to him as detailed in the said application.
(7) The learned Sdm while passing the order u/s 145(1) on 11.5.84 inter alia, observed that the police report received on 10.5.84 too stated that there was a dispute over possession of the premises in question and apprehension of breach peace still, subsisted. He, however, directed that the household goods belonging to Harjit Singh and Smt. Renu Sachdeva which were lying inside the house be released and handed over to rightful owner and the second party bad no objection to it. It is significant to note that the stand of the police throughout was that the goods in question belonged to Harjit Singh and Smt. Renu Sachdeva and no goods belonging to the second Party were found inside the house. It was so stated specifically by the AS] in the diary No. 26 dated 21.1.84 which he recorded on return from the spot.
(8) From the foregoing resume of facts on the record, it clearly emerges that the petitioner Smt. Renu Sachdev had been put into possession by Charanjit Singh Rekhi to whom the premises in question had been allotted by the Deptt. of Rehabilitation and in whose favor lease-deed and conveyance deed were eventually executed by the Managing Officer on 16.1.84. It was but natural for the petitioner as purchaser of the property to have obtained possession of the premises on paying handsome amount towards sale price. On their own showing Party No. 2 was in possession of the premises in question through Harjit Singh excepting, of course, one room on 1st floor which according to them was under their lock and key and was in joint possession of the entire family. The stand of Harjit Singh in this regard is unequivocal and he was occupying the same as a caretaker on behalf of Charanjit Singh Rekhi and Smt. Renu Sachdeva. So, the mere fact that the second Party arrived at and tried to enter into the premises under the cover of their claim that the property belonged jointly to all of them and Charanjit Singh Rekhi was merely benamidar for them would not warrant an inference that a real dispute existed between the parties over possession of the premises in question. The second party was simply asserting a civil right of joint ownership and the learned Sdm slipped into a grave error in assuming that there existed a dispute between the parties over possession of the premises in question.
(9) It is now well settled that the object of section 145 is to prevent breach of peace and for that cud to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to mention status quo until their rights are determined by a competent court. The Section requires that the Magistrate must satisfy before initiating proceedings that a dispute regarding an immoveable property exists and that such dispute is likely to cause breach of peace and it is only when he is satisfied of. the existence of these two conditions that he may pass a preliminary order u/s 145(1). It is equally well settled that the inquiry u/s 145 is limited to the only question as to who was in actual possession on the date of the preliminary order irrespective of rights of the parties. (See RH. Bhutani V. Miss Mani J. Desai : 1969CriLJ13 ). So, the mere fact that a dispute exists between the parties which is obviously of a civil nature would not warrant assumption of jurisdiction by a Magistrate u/s 145. The dispute must relate to possession over the property but no such dispute can be spelt out from the facts and the materials adverted to above. A fugitive act of trespass of or transient interference with the possession of the petitioner by the respondents would not change the character of the dispute, which as stated above, essentially related to civil rights. It would appear that the respondents took recourse to the subterfuge to dispossess the petitioner and sought to cover it up with or without the aid of police in proceedings u/s 145 of the Code. Surety where it is clear upon the materials before the Magistrate that one party is in possession and that another whose claim to possession is a mere pretence is threatening to interfere with that possession, the Magistrate will not be justified to resort to Section 145 and it would be more appropriate for him to take recourse to provisions embodied in Section 107 or 144 of the Code, as the case may be. In this context it may be useful to allude to the following observations of T.NR. Tirumalpad, J.C. in Yumman Sajou Singh V. Chanambam 1962 (1) Crl. L.J. 821 :
'MERELY because a petition has been filed u/s 145, P.C., it does not follow that there is a dispute concerning land. The Magistrate will have to distinguish between a case where one party is clearly in possession of the land and another party who is not in possession of the land attempts to interfere with the possession of the other party and thereby attempts to create a breach of the peace and a case where a bonafide dispute regarding land exists, which is likely to create a breach of the peace. It is only in the latter cases that the Magistrate will start proceeding u/s 145 In the former case, where a party who is the aggressor attempts to interfere with the possession of the opposite party and thereby attempts to create a breach of the peace and files a petition stating that breach of peace is likely, the proper course for the Magistrate is not to proceed u/s 145, but to take step against the party attempting to create a a breach of the peace u/s 107, Cr. P.C. and bind them to keep the peace. The Magistrate must apply his mind judicially in such matters. He must be very chary of putting the land under attachment thereby depriving the party really in possession of the fruits of such possession. Attachment must be resorted to only in cases of emergency.'
(10) This, in my view, is a correct statement of law on the subject. In the instant case too the material on record leaves no room for doubt that the petitioner must have been in possession of the premises in question and it was only on 21.1.84 that the second Party tried to create row and give it toe colour of a dispute regarding possession of the property. Unfortunately, however the learned Sdm does not seem to have perused the police report and the statements accompanying it with proper application of mind and he conveniently overlooked very vital and salient features of the whole case which unmistakably pointed out that the petitioner had been in possession of the premises in question. It is true that the subjective satisfaction is to be that of the Magistrate and this satisfaction can be had either on the basis of police report or from any other information but his satisfaction has to be arrived at after applying his mind to the facts laid before him and not mere ipse dixit of the police or any other person giving such information. In this view of the matter, thereforee, the impugned order would appear to be a clear abuse of process of law in as much as it resulted in grave consequence to the petitioner who was literally deprived of her possession and then forced to remove the articles from the premises in question after obtaining permission of the SDM.
(11) Yet another abuse of process of law which stares one in face is locking and sealing of the premises in question by the police. The counsel for the respondents could not draw my attention to any provision of law which conferred such a power on the police. Only a Magistrate has the power to attach the disputed property u/s 146 of the Code provided he is satisfied that ingredients of the said Section exist. The police could not arrogate to itself the functions and the powers of the Magistrate u/s 145 & 146. Finding himself in this predicament, the learned counsel for the respondents came forth with the argument that even if the locking and sealing of the premises by the police was illegal it had been duly ratified by the learned Sdm as would appear on a reading of various orders passed by him. In the first instance, he did not allow the prayer of the petitioner for restoration of the possession of the premises to her and instead he simply permitted her and Harjit Singh to remove their belongings from the premises in question vide order dated 11.5.84. It was despite the fact that it was submitted to him in unequivocal terms that action of police in putting its lock & seal in question was illegal. Still later petitioner moved another application dated , for restoration of possession but it was declined by the learned Magistrate vide order dated 19.6.84. Although the matter was argued at length by both the parties before the learned Sdm but without expressing any opinion about the factum of actual possession the learned Magistrate simply observed that great apprehension of breach of peace still existed between the two parties and, thereforee, restoration of possession at that stage to any of the parties would further aggravate the sisuation. I am sorry to observe that this is sheer escapism and nothing else. A similar order had been earlier made by the learned Sdm on 23rd May 1984. Evidently the learned Sdm never pondered over the question whether the police had any power to put its lock and seal on the premises in question and he seems to have assumed that such a power did exist. As stated above S. 146 of the Code which is a corollary to S. 145, being completely thereto, confers power on a Magistrate to attach subject of dispute and to appoint a receiver under certain eventualities, being when he considers the case to be one of emergency. In other words, the Magistrate must record a clear finding that in his opinion the case is one of emergency before passing an order of attachment. He cannot simply gloss over an illegal act on the part of the police in locking and sealing the premises by merely expressing the view that great apprehension of breach of peace still subsists. Ratification of an illegal act of police or any other authority is unknown to criminal law. At any rate it is not tantamount to an order of attachment by the Magistrate himself in terms of S. 146. Hence, failure on the part of the learned Magistrate to ponder over the whole matter and apply his mind seriously to this question has resulted in grave miscarriage of justice and the locking and sealing of the premises in question by the police cannot be permitted to continue any more.
(12) The upshot of the whole discussion, thereforee, is that the impugned order cannot be sustained. It is accordingly set aside and subsequent proceedings based on it are also quashed. Under the circumstances, the Sub Divisional Magistrate is directed to restore possession of the premises in question to the petitioner within a month from today. He be informed of this order forthwith.
(13) It is not disputed that twice the registered Setters were sent to the respondent. This was sufficient service. The arbitrator has no power to order service of notice by means of publication, as the learned judge has held. This is correct. If the notice is to be served through court, the provisions of Order V Civil Procedure Code will apply (See 41 of the Act). On this view the publication must be treated as a superfluity, a needless exercise. We do not differ from the learned Judge on this holding. Where we do differ from him is on his holding that service by register notice was not proper service. He held that mere sending the registered notice, unless served, is not sufficient service. This is the fundamental fallacy in his reasoning. All that S. 42 requires the arbitrator to do is to send notice by registered post to the party's usual or last known place of abode or business. Firm Kapur and Sons (supra) holds this. The learned judge dissented from it. In our respectful opinion the law is correctly stated in Firm Kapur & Sons.
(14) So publication in no way vitiates the proceedings. Nor has this prejudiced the Industries in any manner. In fact the arbitrator, out of abundant caution, took this course of publication in the newspaper in order to safeguard the interest of the Industries so that they may take part in the proceeding before him and have their say.
(15) In our judgment it is wrong to hold that (he arbitrator was guilty of misconducting the proceedings. He did all that the law required him to do and something more ex abundanti cautela. But that something more does not amount to misconducting the proceedings. An arbitrator can be said to have misconducted the proceedings, when there is such an irregularity of procedure as may have caused a substantial miscarriage of justice. Here there is none. Case remanded.