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Bai Damyanti W/O. Madhusudan Laxmishanker Vs. Pushpaben Gunvantrai Raval and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR523
AppellantBai Damyanti W/O. Madhusudan Laxmishanker
RespondentPushpaben Gunvantrai Raval and ors.
Cases ReferredGanga Bux Singh v. Sukhdin
Excerpt:
- - 145(1) whenever a chief presidency magistrate, district magistrate, sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, 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 within a time to be fixed by such magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in.....j.b. mehta, j.1. this revision application raises a vexed question as to the crucial date viz. 'the date of the order' within the meaning of the second proviso to section 145(4) of the criminal procedure code with reference to which the inquiry as to possession has to be made when the applicant was not in actual possession and had been forcibly dispossessed. the section in terms states the 'crucial date' as the date of the preliminary order passed under section 145(1), and that the fact of actual possession has to be inquired with reference to that date, or if a person had been dispossessed within two months next before this date, he is to be treated as if in actual possession on that date. it is however contended that this section would have to be liberally construed and this two months'.....
Judgment:

J.B. Mehta, J.

1. This revision application raises a vexed question as to the crucial date viz. 'the date of the order' within the meaning of the second proviso to Section 145(4) of the Criminal Procedure Code with reference to which the inquiry as to possession has to be made when the applicant was not in actual possession and had been forcibly dispossessed. The section in terms states the 'crucial date' as the date of the preliminary order passed under Section 145(1), and that the fact of actual possession has to be inquired with reference to that date, or if a person had been dispossessed within two months next before this date, he is to be treated as if in actual possession on that date. It is however contended that this section would have to be liberally construed and this two months' period, which is allowed by the Legislature for doing justice to a man dispossessed, must be extended by relating back the preliminary order to the date when the petition is filed or when the Magistrate takes cognizance either from the police report or any other information in those cases where the Magistrate himself is responsible for the delay. In the present case on the death of the father-in-law on May 25, 1969, there has been a dispute between these two brothers' families. The applicant is one brother's wife while the respondent No. 1 is the other brother's wife, and the other two opponents were the other brother's children. The applicant had alleged that she had been forcibly dispossessed by opponents on July 16, 1969. On the next day i.e. July 17, 1969, the N. C. complaint was filed. The present application was filed only on September 11, 1969 on the ground that the police had told the applicant that this being the brothers' dispute must be amicably settled rather than having recourse to the Criminal Court. On this petition the learned Chief City Magistrate passed an unusual order, even when the two months' period from the date of the alleged dispossession was going to expire only within the few days. The learned Chief City Magistrate on the very same day on presentation of this petition issued a notice to the other side and fixed the matter for hearing before passing the preliminary order. Consequently, the two months' period from the alleged dispossession on July 16, 1969 expired even before the preliminary order in the present case was passed on December 18, 1969. Thereafter by the final order, dated February 22, 1970, the preliminary order has been cancelled on the ground that no dispute as required under Section 145(1) existed, and because the question of factum of possession on July 16, 1969, could not be decided as that date was beyond the two months' limit envisaged by the second proviso in Section 145(4) from the crucial date of the preliminary order. The applicant had, therefore, filed the present revision application which in view of the conflict of authorities on this vexed question has been referred to us by the learned Single Judge.

2. The material clauses of Section 145 in this connection which are to be considered are Sub-clauses (1), (4), (5) and (6) as under:

145(1) Whenever a Chief Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, 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 within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of sikh claims.

(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any so put in, hear the parties and conclude the inquiry, as far as may be practicable within a period of two months from the date of the appearance of the parties before him and if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained therein.

Provided further that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date.

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(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.

(6) If the Magistrate decided that one of the parties was or should under the first proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to Sub-section (4) may restore to possession to the party forcibly and wrongfully dispossessed.

Under Section 145(1) the Magistrate has to make a preliminary order in writing if he is satisfied that a dispute likely to cause breach of peace exists concerning any land or water or such immoveable properly within his jurisdiction, from the police report or other information. He has to mention the grounds of his satisfaction in the preliminary order. Thereafter he requires the parties by this order to attend the Court in person or by a pleader, within the time to be fixed and to put in written statements of their respective claims in respect to the fact of actual possession of the subject of dispute and to put in such documents or to adduce such evidence or such affidavit and evidence of such person as they rely in support of such claim. Under Section 145 Sub-clause (4), after service of the copy of the order as required under Section 145(3) the Magistrate has to hold an inquiry. Section 145(4) in terms provides that such inquiry is without reference to the merits or the claims of any of such parties to a right to possess the subject of the dispute. The Magistrate is to peruse the statements, documents and affidavits, if any, so put in, and to hear the parties and conclude the inquiry, as far as may be practicable, within the period of two months from the date of the appearance of the parties before him. In this inquiry, if it is possible for him, he has to decide the question whether any or which of the parties at the date of the preliminary order was in such possession of the said subject. The expression 'such possession' would show that the Magistrate is not concerned with the character of the possession because his entire inquiry as to right of possession of the subject of dispute is to be without reference as to the merits of the claims of any of the parties. He is to decide the factum of possessions as existing on the date of the preliminary order. The second proviso of Section 145(4) which is material for our purpose in terms enacts that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in actual possession at such date of the preliminary order. The Legislature has thus tried to do justice by this time limit, of two months to extend the scope of the inquiry in those cases where a person is not in actual possession but he had been forcibly dispossessed. The date of forcible dispossession however, must be within two months of the date of the preliminary order and the Magistrate's jurisdiction extends to treat even such dispossession within two months' period as if it was possession on the crucial date viz. the date of the preliminary order. Sub-clause (5) then provides that nothing in the 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. Thereafter Section 145(6) provides that if the Magistrate decides that one of the parties was or should under the second proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbances of such possession until such eviction, and when he proceeds under the second proviso to Sub-section (4), the Magistrate can even order restoration of possession to the party forcibly dispossessed. In Bhimka v. Charan Singh : 1959CriLJ1223 their Lordships explained the scheme of Section 145 in this relevant provision by observing that these were police orders made to prevent breaches of the peace. The entire foundation of the Magistrate's jurisdiction is apprehension of the breach of the peace, and with that object, he makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of in the manner provided by law. The life of the said order is co-terminus with the passing of a decree by a Civil Court and the moment the Civil Court makes an order of eviction, it displaces the order of the Criminal Court. Therefore, the Magistrate makes only a provisional order in regard to possession under Section 145 irrespective of the rights of the parties. Their Lordships also observed that under Section 145(1), the jurisdiction of the Magistrate is confined only to decide whether any and which of the parties on the date of the preliminary order was in possession of the land in question. The order only declares actual possession of a party on a specified date and does not purport to give possession. Even in the case of any party who has been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order, the Magistrate is only authorised to treat that party who is dispossessed as if he had been in possession on such date. Under Section 145(6) when the Magistrate is thus acting under the second proviso, he had also power to restore possession to the party forcibly and wrongfully dispossessed. Therefore, the entire scheme of Section 145 makes it clear that this is a power to ask a police order with the sole object of preventing breaches of peace. It is true that disturbances of peace would include even smaller disturbances and they need not be disturbances affecting public tranquility. The distinction between 'mere disorder' which is problem of law and order and 'public disorder' has been explained in Ram Manohar Lohia's case in : 1966CriLJ608 . His Lordship Hidayatullah J. (as he then was) in terms pointed out this distinction between the 'public order' and mere 'law and order' which was wide enough to take in all of them. Public order if disturbed must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order If, however, the two fighters were of rival communities and one of them tried to raise communal passions, the problem is still one of law and order but it raises the apprehension of public disorder. Therefore, it is obvious that Section 145(1) contemplates even a smaller disturbance which may not involve a larger public disorder affecting public tranquility. Therefore, if a dispute regarding immoveable property raises an apprehension even of such smaller disturbances where the parties might take law in their own hands and cause a problem for law and order to be maintained, this salutary power is vested by the Legislature in the Magistrate concerned so that he can prevent a breach of peace. The Magistrate is not exercising any jurisdiction to decide the rights of the rival parties. That is why even if the preliminary order is served on the other side and the Magistrate makes an inquiry under Section 145(4), such inquiry as to the right to possess the subject matter of dispute is in terms required to be without any reference to the merits or claims of the rival parties. Therefore, the jurisdiction which is conferred on the Magistrate in the inquiry under Section 145(4) is only to determine whether any and which party was in actual possession on the date of the preliminary order. The second proviso only extends the scope of the inquiry in those cases where the party had been forcibly dispossessed. In order to do justice to such a party, whose possession has been forcibly taken away two months next before the date of the preliminary order, the said party would be treated as if he was in actual possession on that date. Even the order which has to be made under Section 145(6) for restoration of possession in such cases is only an incidental consequence in the entire scheme of Section 145 of a police order. That is why Section 145(5) in terms enacts that nothing in Section 145 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 a case the Magistrate shall cancel his said order, and then stay all further proceedings. Therefore, the entire foundation of the Magistrate's jurisdiction is the apprehension of breach of peace from the dispute regarding immoveable property. Even though the Magistrate does not decide any rights of the parties as such, he declares the possession on the crucial date, whether actual or deemed possession in the inquiry under Section 145(4) and requires the parties to maintain that possession peacefully till the decision of the competent civil Court. The whole perspective of Section 145 is to prevent parties in such land dispute from taking law in their own hands and to deal with such situation which would have otherwise resulted in disorder or disturbance of peace. The Magistrate maintains the possession of the party who is found to be in actual possession irrespective of merits on the crucial date, so that the parties may not take law in their own hands and resort to a peaceful solution of the dispute through the civil Court. It is in the light of such a provisional order which is to last for temporary duration and which is no adjudication on merits at all that the present dispute has to be determined as to what is the crucial date. The inquiry under Section 145(4) thus only incidentally affects the rights of the parties by a provisional temporary order and the entire inquiry has to be dropped by the Magistrate if he finds at any time that no dispute exists or has existed giving rise to his apprehension of breach of peace. Therefore, the power of inquiry being only incidental to the main object of the section to preserve breach of peace, the jurisdiction to make this inquiry into the factum of possession on the crucial date has to be strictly construed in the light of the limitation laid down by the statute. The second proviso to Section 145(4) categorically mentions that even in cases where one has been forcibly and wrongfully dispossessed, the Magistrate has jurisdiction to make this inquiry under Section 145(4) by treating the last possession of such party as actual possession, provided the party was dispossessed within two months next before the date of the preliminary order. The legislative mandate is expressed in clear, categorical terms that the crucial date is to be decided only with reference to the date of the preliminary order and the Magistrate is to exercise his jurisdiction to decide the factum of possession as existing on that date or in cases of dispossession within two months next before that date. The Magistrate is not conferred any jurisdiction to make this inquiry with reference to any prior date. If, therefore, the date of dispossession falls within the outer limit of two months next before the date of the preliminary order, the statutory limitation on the jurisdiction of the Magistrate shall come into play and he would have no jurisdiction to make an inquiry into the factum of possession in such case. That is why the plea of a liberal construction is vehemently argued in this case where the delay could be attributed to the Magistrate because he did not promptly exercise his duties or because he followed this dilatory procedure of a notice and preliminary hearing even before passing such a preliminary order. It is with reference to these cases that it is sought to be argued that a party who has been dispossessed is deprived of the benefit of this inquiry, merely because the Magistrate did not pass the order promptly as he ought to have done. That is why it is argued that the second proviso in Section 145(4) must be liberally construed so that the party does not succeed because of the delay of the Court.

3. As Lord Evershed pointed out in Rookes v. Barnard 1964 A.C. 1129 at page 1193, 'it is the universal rule', as Lord Wensleydate observed in Grey v. Pearson (1857) 6 H.L.C. 61, 106 H.L., that in construing statutes, as in construing all other written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity, and inconsistency, but no further. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the law giver.' His Lordship further pointed out that nowadays, when it is a rare thing to find a preamble in any public general statute, the field of inquiry is even narrower than it was in former times. In the absence of a preamble there can be only two cases in which it is permissible to depart from the ordinary and natural sense of the words of an enactment. It must be shown either that the words taken in their natural sense lead to some absurdity or that there is some other clause in the body of the Act inconsistent with, or repugnant to, the enactment in question construed in the ordinary sense of the language in which it is expressed. Therefore, it is the settled principle of interpretation that if the language of the statute is precise and unambiguous, nothing more can be done by Courts than expound those words in their natural, ordinary sense. It is only if the enactment in question when construed in the ordinary natural sense of the language in which it is expressed leads to absurdity, inconsistency or repugnancy that it would be permissible for the Court to depart from the ordinary natural sense of the words of the enactment. In the present case, the expression 'date of the preliminary order' can hardly be made more precise and clear. There is no absurdity or doubt in this clear expression used by the Legislature which has no ambiguity. When this term is not capable of two meanings or two constructions, no question can arise for giving liberal or wider construction so as to avoid any ambiguity, repugnancy, inconsistency etc. If the power of the Court to construe a statute even by filling up the gaps is only interstitial, it is obvious that it can be exercised in those case where the statutory language in the ordinary natural sense is capable of two interpretations. If however, the statutory enactment is expressed in clear unambiguous language, as in the present case, even if there is casus omissus it has to be left to the Legislature to intervene to meet such hard cases, but it is not open to the Court to rewrite the statute by attempting to fill up the casus omissus. In fact it would be against all settled principles of construction to proceed on the assumption that the Legislature has committed a mistake.

4. In the present case, the legislative history is also important. This proviso was first enacted in 1898 probably as a consequence of the two Calcutta cases, in the matter of the petition of Mohesh Chander Khan I.L.R. 4 Cal. 417 and Katras Jherriah Coal Co. v. Sibkrishts Daw and Co. I.L.R. 32 Cal. 297. These decisions had laid down that it was impossible to lay down any hard and fast rule which would be applicable to all cases as to the exact point of time to which an enquiry under Section 145 must be directed and the time at which possession must be found in one party or the other must be governed by each particular case. Therefore, in cases of dispossession naturally the Court extended the scope of the inquiry to the date of the original peaceful possession. That is why the Legislature intervened by enacting this proviso which creates a fiction where the party is not in possession, either at the date of the petition or at the date of the preliminary order, that the Magistrate can make inquiry under Section 145(4) even when the party is not in actual possession if he had been forcibly dispossessed within two months next before the date of the preliminary order and on that basis restore his possession under Section 145(6). Therefore, the Legislature clearly intended to lay down a specific date which was to be the crucial date for the exercise of this incidental jurisdiction in the context of such police order for maintaining law and order and averting breach of peace in such land dispute. The Magistrate's power to declare factum of possession and to maintain such possession was in terms restricted by the Legislature by this statutory limit with reference to this crucial date viz., the date of the preliminary order. Even in case of forcible dispossession in order to do justice, the Magistrate could not go into any such inquiry to any period prior than this two months limit laid down by the Legislature. This is a fetter on the power of the Magistrate and one of the terms as to the exercise of his jurisdiction which must, therefore, be strictly construed. Therefore, even when we look at this history of the statute and the mischief which was sought to be remedied by the Legislature, it is obvious that the Legislature sought to deal with this case of dispossession which had arisen only within the two months from the date of the preliminary order. The legal fiction was, therefore, created by the Legislature only for the narrow period of two months from the date of the preliminary order. Such a legal fiction could never be extended, specially when it was a legal fiction as regards the terms of the jurisdiction of the Court itself, by creating any other legal fiction that the date of the preliminary order must be deemed to relate back to any prior period in such a case where the Court was responsible for any part of the delay.

5. It is well-known that whenever the Legislature intends any order to relate back,' it makes a specific provision as it has done in various statutes. If such a fiction was intended by the Legislature it would have made that specific provision even in this case. The Legislature was well aware of this fact that the preliminary order may be delayed in certain cases because the Magistrate had to arrive at his subjective satisfaction either on the basis of the police report or other information which was relevant for this purpose. That is why the Legislature provided such long period of two months which in ordinary normal cases would be sufficient to meet such hard cases. The Legislature never provided any such specific procedure of a preliminary notice and preliminary hearing even before passing such urgent order whose sole purpose was to see that breach of peace is not done and the parties maintain law and order and did not take law in their own hands till their private dispute was settled by the competent Court. Of course, the section is wide enough to cover smaller disturbances of peace, because this order is not contemplated to be limited to cases which endager public tranquillity, Even so, the Magistrate is required to pass this preliminary order stating his grounds on the basis of which he is satisfied of the nature of this dispute which is likely to result in breach of peace. That is why the party who is to be affected by the order is given a right under Section 145(5) to appear and show to the Magistrate that such a dispute as contemplated by Section 145(1) does not exist or has not existed, in which event the Magistrate must cancel the preliminary order without holding any inquiry as contemplated by Section 145(4). Therefore, the Legislature having enacted this fiction to provide a sufficient period which would meet with all normal delays, such a second fiction to extend this crucial date could never be introduced by the process of construction. Even for the final inquiry the Legislature has provided in Section 145(4) that it shall be completed as far as practicable within two months and, therefore, the Legislature necessarily intended urgent orders being passed, without evolution of such a dilatory procedure in such cases by the concerned Magistrate. Therefore, this is not a case where the Legislature had not applied its mind to the problem before it as to how such cases of injustice to persons who were forcibly dispossessed were to be dealt with. Even this limit of two months might not do justice in all cases even when there was no question of any delay by the Court. In case of a person who was forcibly dispossessed beyond the limit of two months from the date of the preliminary order, even in the normal case where there was no delay attributable to the Court, the Magistrate would be helpless in such matter and he could not extend his jurisdiction on the basis of so called implied powers to do justice in all cases of forcible dispossession. Once, jurisdiction of the Magistrate was limited to be exercised in case of forcible dispossession only if such dispossession was within this two months' statutory period next before the date of the preliminary order, the Magistrate would be bound to maintain possession of the person who had forcibly entered into possession if he had done so beyond the said two months' period. When the Legislature was doing this it was conscious of what it was doing by setting this two months limit. Therefore, even if such a person's possession has to be maintained, the Legislature neverthought it to be unfair or contrary to the policy of maintaining and preserving peace. If the Legislature had intended that in all cases were a person has been forcibly dispossessed, the Magistrate's inquiry should go back to the date of dispossession, this two months' limit would never have been enacted by the Legislature.

6. Besides, there is nothing intrinsically unfair or unjust in this two months' limit set down by the Legislature. If the final order is to be passed within the period of two months, such urgent preliminary order would normally never take such a long period. It may be that the parties may not be prompt or the Magistrate may have misconceived the duty to deal with the matter very urgently so that the statutory object may not be frustrated. That, however, would never justify rewriting the section. If the settled principles of construction are to be adopted as aforesaid, this Court cannot rewrite the statutory language when the enactment is expressed in so clear and categorical terms. Even if there is any Casus Omissus it has to be filled up by the Legislature but the Court cannot rewrite the language.

7. That is why equitable principles have been invoked in the present case as per the two settled maxims that the act of the Court never prejudices any party and on the principle nunc pro tune (now for then). These equitable principles would be entirely out of place in the present context. It is not the case of Mr. Amin that the statutory language is so obscure or capable of two constructions that the language has to be modified by arriving at the intention of the Legislature. In normal cases where no delay could be attributed to the Court, the section is capable of properly being worked out as per its terms. Of course, in such cases injustice might arise when the cases fall beyond the outer limit of two months and possession of such person who forcibly dispossessed the other man would have to be maintained by the Magistrate. Therefore, this is not a case where the section by reason of obscurity of its language is not workable and which in its ordinary natural sense leads to any absurdity or repugnancy or that it can be rewritten by interpreting in a more liberal sense. There is no other sense in which the expression 'date of the preliminary order' can be interpreted. Therefore, if the settled principles of construction are to be applied, this is not a case where the Court can be expected to fill up any casus omissus by rewriting the entire statute and by introducing a new fiction that in cases where there is delay by the Court the date of the preliminary order would relate back to the date of the receipt of the petition or the date of the cognizance by the Magistrate of this proceeding.

8. Besides, these equitable principles had to be invoked where there is a duty on the Court to act and its order results in some grave irreparable prejudice, In such cases equity regards that as done which ought to have been done. In the present case, however, the jurisdiction of the Magistrate to make this inquiry under Section 145(4) is dependent on the statutory condition as to the existence of the dispute as defined in Section 145(1) which gives rise to the apprehension of breach of peace in his mind. Even if the other party at any time satisfies the Magistrate that such a dispute did not exist or has ceased to exist, the Magistrate under Section 145 has to cancel his preliminary order and to stay the proceedings. Therefore, the party would have no right as such of demanding this inquiry which is only an incidental inquiry, provided necessary statutory condition of the existence of the dispute contemplated by Section 145(1) is fulfilled. Besides, this is not a proceeding which has to be initiated on any private petition as such and which the Magistrate is bound to decide. The petition is only one of the sources of information. The entire jurisdiction is suo motu based on the satisfaction of the Magistrate, even though such a satisfaction he may derive from the petition, other information or a police report. Besides, the order which the Magistrate makes is a temporary provisional order till the decision of the rights of the parties by the competent Civil Court. Even in a suit under Section 9 of the Specific Relief Act a party who had been dispossessed can get relief even against a person with title provided he approaches the Civil Court within the limitation period of six months for such a suit. Therefore, so far as the Civil rights of the parties are concerned, the Magistrate's order does not seek to affect those rights. It is not the case where the Magistrate decides any rights whatever. He merely exercises a statutory police power for declaring a person to be in possession and maintaining his possession during the period of dispute which endangers breach of peace. The context of such police power, where only incidentally this inquiry is to be made as to the factum of possession, excluding all considerations of legal character of possession, and which is to result in such temporary provisional order, would never require invoking any such equitable principles, especially where the sole purpose of invoking these principles is to require the Court to rewrite the clear statutory language. There would be no implication of any such power to decide the factum of possession with reference to any prior date in the face of this categorical provision which gives the crucial date only as the date of preliminary order.

9. Therefore, these authorities which were relied upon by Mr. Amin (1) Bhadrama v. Kotam Raj A.I.R. 1955 Hyd. 140, (2) Narayana v. Kesappa : AIR1951Mad500 , which had invoked the two equitable principles as aforesaid and had under the guise of liberal interpretation sought to rewrite statutory language by treating the date of preliminary order as relating back to the date of the receipt of the petition, could never be held to proceed on any settled principle of construction. As against this view there is abundant authority even of decisions of the Full Bench of the Madras High Court and the Full Bench of the Andhra Pradesh High Court and Allahabad High Court which had taken the contrary view that the clear language of the statute cannot be modified by the Court in this case on any settled principles of construction. These decisions are in (1) K. Venkat Ramiah v. C. Sitharamiah : AIR1961AP208 Athiapa Gounderv. S.A. Athiapa A.I.R. 1967 Mad. 455, and (3) Ganga Bux Singh v. Sukhdin : AIR1959All141 . Even our Single Judges have taken the same view and there were decisions of other High Courts which had also taken the view as per these Full Bench decisions. We completely agree with that line of decisions as no settled principle of construction can be invoked by us in such a case to fill up the alleged casus omissus by holding that the date of the preliminary order must relate back in such cases of Court's delay to the date of the receipt of the petition or the date of the cognizance of the proceeding by the Magistrate. Such a view is not only against the settled principles of construction but would lead to a futile inquiry as to whether a party, police or the Court was responsible for the delay and to what extent. In any inquiry of this type which was to be finished in such a short time, the Legislature could hardly have envisaged this further inquiry as to whether the Court was responsible for the delay or the party or the police and that is why the Legislature has categorically defined the jurisdiction of the Magistrate to make an inquiry with reference to the specified date in the section viz., the date of the preliminary order. That limit has got to be arbitrary and cases beyond the limit would have to be left out even though in those cases the person had been dispossessed. These cases might not only be due to the parties' fault but even the police authorities might not have been vigilant. Therefore, even if Court had not delayed the matter, such cases could not be helped because the Legislature never contemplated hardship being relieved in those cases when dispossession was beyond the statutory two months' period. In the context of the scheme of Section 145, such a provisional temporary order is not going to affect the party's rights in such a manner that there would be any grave prejudice or inseparable harm to the party concerned, merely because one or the other party's possession was maintained for the limited period for the sole reason of maintenance of peace by such order in the exercise of police power.

10. Therefore, on that short ground Mr. Amin's contention cannot be accepted that the crucial date in such a case where the Court is responsible for the delay must relate back to any other date than the date of the preliminary order. Therefore, in that view of the matter, the learned Magistrate was right in not making any inquiry under Section 145(4) on the short ground that the petitioner's dispossession was beyond the two months' period from the date of the preliminary order.

10.1 Mr. Amin's next argument is that such an order which was passed by the learned Chief City Magistrate should be treated as a preliminary order even though it was a preliminary notice for a preliminary hearing before the preliminary order. This aspect would not help Mr. Amin and any further inquiry in this question is futile. The learned Magistrate who has cancelled the preliminary order has proceeded on the footing that there was no material on the record which would justify any apprehension of breach of peace. Such an order could hardly be revised by us. Therefore, on merits this petitioner is bound to fail even on that ground. If the dispute was not one which fell under Section 145(1), the Magistrate would have no jurisdiction to hold the inquiry which the petitioner wanted for her being declared in possession and for maintaining or restoring her possession. Therefore, this revision application must fail and is dismissed.

11. While parting, we would make certain observations which should be borne mind by our Magistrates who seek to exercise this salutary police power. The Magistrates should always keep in mind that this is a power founded on apprehension of breach of peace. The term 'breach of peace' is used in Section 145 in the wider sense so as to cover even smaller disturbances which do not affect public tranquility by resulting in any public disorder. In the context of such cases arising from land or immoveable property disputes the whole object of the section of passing suitable orders which would avert breach of peace would be frustrated, unless the Magistrate looks to the urgency of such matter and promptly passes a preliminary order. After the preliminary order is passed, it can be cancelled at any time at the instance of the party affected, if he satisfies the Magistrate that the dispute was not one which was covered under Section 145(1). The Legislature also contemplates even the final inquiry being finished within two months as far as possible and in such a context the preliminary order must be passed very urgently. The allegations would show, especially in cases of such alleged dispossession, that the party is intending to take the law in his own hand. The Magistrate's intervention is sought so that the parties do not flout the law by attempting any forcible dispossession. It is to avert such disorders during the period the dispute would be resolved by the competent Court that the Magistrate seeks to exercise the jurisdiction by passing suitable orders so that the law and order can be maintained without endangering breach of peace. In the context of such orders and looking to the urgency of the situation which calls for prompt, urgent action by the concerned Magistrate, such a mechanical procedure of preliminary notice and such preliminary hearing before passing even the preliminary order can hardly be envisaged, especially in such cases of alleged forcible dispossession when the two months' time was running against the concerned party. Therefore, even a cautious and very circumspect Magistrate was never expected to follow such a procedure which would completely frustrate his entire order. In the present case, the preliminary order was actually passed on the footing that the dispute was one which required such an order. Two months, time limit had however already elapsed and the whole order was futile. Therefore, the Magistrates should always keep in mind the necessity to pass prompt and urgent orders in such cases so that the time does not run against the aggrieved party which would frustrate the entire object of the salutary provision. The other party is also not going to be prejudiced even if' no notice or preliminary hearing is given at this stage as it can at any time appear and seek cancellation of the preliminary order. The preliminary order would surely avert breach of peace and would not affect any of the parties. If the whole object of this statutory provision is borne in mind that law and order must be preserved rather than parties be allowed to take the law in their own hands, the Magistrates must always exercise these powers promptly and expeditiously so that the parties may be compelled to maintain law and order by resorting to the peaceful settlement of their dispute through the Court. If such proceedings are delayed by such mechanical orders, the only effect would be that the parties would be encouraged to take the law in-their own hands and would never resort to the civil Courts for settlement of their disputes, which would frustrate the whole object of this law.


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