Kumari Bani Bose v. District Magistrate — 1985 DIGILAW 419 (ALL)

JUDGMENT : S.K. Dhaon, J. The Petitioner No. 1, an alleged allottee of a Government accommodation, has once again invoked the jurisdiction of this Court under Article 226 of the Constitution and has prayed that the. Respondents may be directed to restore to her the possession of the said accommodation. 2. In the earlier writ petition No. 2188 of 1985 decided on 20th March, 1985, the Petitioner had come out with the case that she had been allotted Flat No. III/509 situated in the campus of the Swaruprani Hospital by the appropriate authority. She had taken due possession of the said accommodation in pursuance of the order of allotment and thereafter she was forcibly dispossessed by Dr. M.S. Yadav, the Respondent No. 5. In that petition too the Petitioner had sought a direction from this Court that the possession of the said accommodation may be restored to her. The Respondents had brought to our notice the fact that the City Magistrate had passed an order purporting to be u/s 145(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) with respect to the said accommodation and had also attached the same in the purported exercise of powers u/s 146(1) of the Code on the ground that an emergency existed. The said accommodation was given in the custody of the Public Works Department of the Government of Uttar Pradesh. Dr. Yadav had pleaded that he remained in occupation of the said accommodation throughout, the Petitioner at no stage took possession of the same and, therefore, the question of 'being dispossessed forcibly did not arise. We had specifically directed the City Magistrate to adjudicate upon the respective case set up by the Petitioner and Dr. Yadav and to record a finding as to which party was in possession of the said accommodation on the relevant date. 3. The City Magistrate on 22-3-1985 gave a fresh decision. He has recorded a finding that none of the patties appeared before him to file their respective written statements. He, therefore, passed an ex-parte order with the finding that none of the parties were in possession on the relevant date. He has based his order solely on a police report. He has also held that no valid order of allotment subsists in favour of the Petitioner. He, has therefore, directed the parties to obtain adjudication from a competent Civil court. He has based his order solely on a police report. He has also held that no valid order of allotment subsists in favour of the Petitioner. He, has therefore, directed the parties to obtain adjudication from a competent Civil court. Meanwhile, he has maintained the order of attachment. 4. The Petitioner has averred that on 22-3-1983 when the City Magistrate passed his order, she made an application before him stating therein that a valid order of allotment subsisted in her favour and, therefore the order of attachment may be recalled and she may be put in possession. This application has been rejected by the City Magistrate. 5. Sections 145 and 146 of the Code are integral parts of a Scheme for diffusing a situation where there is a likelihood of the breach of the peace because of dispute concerning any land or water or their boundaries. Section 145 requires, first, the satisfaction of the Magistrate that a dispute likely to cause breach of the peace exists concerning any land or water or their boundaries and, thereafter, the issuance of an order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. The condition precedent to a proceeding u/s 145 is the passing of a preliminary order under Sub-section (1) of that provision. An order of attachment u/s 146(1) can be passed in three situations. The first situation in which an order of attachment can be passed is when the Magistrate considers the case to be one of emergency. This jurisdiction can be exercised at any time after making an order under Sub-section (1) of Section 145. Sub-section (3) of Section 145 prescribes the procedure which should be adopted for the service of summons upon such person or persons as the Magistrate may direct so as to enable the parties concerned to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. Sub-section (3) of Section 145 prescribes the procedure which should be adopted for the service of summons upon such person or persons as the Magistrate may direct so as to enable the parties concerned to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. In Sub-section (4) the Magistrate is enjoined to peruse the statements put in by the parties, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible decide whether any and which of the parties was, on the date of the order made by him under Sub-section (1), in possession of the subject of the dispute. The proviso to Sub-section (4) is important. It provides that if it appears to the Magistrate that any party has bean forcibly and wrongfully dispossessed within two months next before the date on which the 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 the party had been in possession on the date of his order under Sub-section (1). The proviso, therefore, creates a fiction that a party though actually not in possession on the date of the preliminary order passed under Sub-section (1) of Section 145 shall be deemed to be in possession if the conditions enumerated therein are fulfilled. In other words, the enquiry of the Magistrate under Sub-section (4) will not be complete if he merely records a finding that none of the parties was in possession on the date of the order passed under Sub-section (1) of Section 145. Once the Magistrate finds that on the material before him he is unable to record a finding as to which party was in "possession on the date of the preliminary order, he has to focus his attention to the contents of the proviso and then record his finding as to whether any party had been forcibly and wrongfully dispossessed within two months next before the date of the report of the police officer or other information received by him or after that date and before the date of his preliminary order. Sub-section (5) of Section 145 enables any party to demonstrate that no dispute likely to cause a breach of the peace exists or has existed. Once this is established the Magistrate is enjoined to cancel his preliminary order passed under Sub-section (1) of Section 145. Subsection (6) of Section 145 provides that if the Magistrate decides that one of the parties was, or should under the proviso to Sub-section (4) be treated as being in possession of the subject of dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law. He shall also forbid any disturbance of such possession until such eviction. Further more, if the Magistrate is proceeding under the proviso to Sub-section (4), he is required to restore the possession to the party forcibly and wrongfully dispossessed. It is, therefore, apparent that whenever the conditions enumerated in Sub-section (5) or Sub-section (6) are fulfilled, the order of attachment passed immediately after the passing of the preliminary order on the ground of emergency shall stand automatically withdrawn. 6. The remaining situations in which the Magistrate in the exercise of powers under Sub-section (t) of Section 146 can attach the subject of dispute come into existence only at the final stage of the proceedings after the preliminary order. The final stage as envisaged is the stage of Sub-section (4) of Section 145 together with the proviso thereto. It is only in proceedings under that provision that the Magistrate can decide that none of the parties was then in possession or he is unable to satisfy himself as to which of them was then in possession of the subject of dispute. 7. The important words in Sub-section (1) of Section 146 are: "If be decides-that none of the parties was then in possession, or if he is unable to satisfy himself as to which of them was then in such possession of the subject matter of dispute". Therefore, the Magistrate has to decide as to which party was in possession on the relevant date. The possession referred to in the aforequoted provision is confined not only to the actual possession on the date of passing of the preliminary order but also includes the notional or fictional possession referred to in the proviso to Sub-section (4) of Section 143. 8. The possession referred to in the aforequoted provision is confined not only to the actual possession on the date of passing of the preliminary order but also includes the notional or fictional possession referred to in the proviso to Sub-section (4) of Section 143. 8. It is not well settled that a proceeding u/s 145 of the Code is an 'Inquiry' within the meaning of Section 2(g) of the Code. This term means "every enquiry, other than a trial, conducted under the Code by a Magistrate or Court". It is also well settled that an enquiry conducted by the Magistrate u/s 145 is a 'judicial proceeding' within the meaning of Section 2(i) which includes any proceeding in the course of which evidence is or may be legally taken on oath. The test for determining whether a proceeding is or is not a 'judicial proceeding' within the meaning of the definition is whether, in the course of that proceeding, the Presiding Judge has the power legally to take evidence on oath and not whether he has actually taken such evidence. The Indian Evidence Act 1872 applies to all judicial proceedings in or before any court. In Section 3 of the Evidence Act "court" includes all judges and magistrates, and all persons, except arbitrators, legally authorised to take evidence. Therefore, the provisions of the Evidence Act apply to the proceedings u/s 145 of the Code. 'Evidence' under the Evidence Act means and includes (1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the court; such documents are called documentary evidence. 9. It will be seen that a police report cannot fall in the category of 'evidence' within the meaning of Section 3 of the Evidence Act. Consequently, the report was inadmissible and the City Magistrate acted illegally in relying upon the police report alone while deciding the question of possession of either party on the relevant date. Such a report has relevance only at the stage when a preliminary order under Sub-section (1) of Section 145 is made and not thereafter. The finding of the Magistrate is, therefore, based on an irrelevant consideration and is liable to be set aside on this ground alone. Such a report has relevance only at the stage when a preliminary order under Sub-section (1) of Section 145 is made and not thereafter. The finding of the Magistrate is, therefore, based on an irrelevant consideration and is liable to be set aside on this ground alone. We have already emphasised that the Magistrate had to decide the question of possession. in the word 'decide' the application of mind and the taking into consideration of relevant and not extraneous consideration, is implicit. The Magistrate is clothed with sufficient powers to himself call for further evidence. He can exercise that power by summoning witnesses to enable them to decide the question of possession. We are constrained to observe that the Magistrate, in the instant case, shirked his responsibility by basing his decision on a mere police report. 10. There is yet another infirmity in the order of the learned Magistrate. He has ignored altogether the provisions contained in the proviso to Sub-section (4) of Section 145. Assuming he had, on the relevant considerations come to the conclusion that neither of the parties was in possession on the date of the preliminary order, he could not rest his cars there. He had to sail further to find out as to whether any party was in possession at some point of time within two months of the date of the report of the police or some party had come into possession after the police report had been submitted and before he passed the order under Sub-section (1) of Section 145. The Magistrate was duty bound to go into this question as it was the precise case of the Petitioner in this Court that she had been dispossessed after being put in possession on the basis of 'an order of allotment. It is to be noted that the order under Sub-section (1) of Section 145 was passed within a few days after the date on which the Petitioner was allegedly put in possession and dispossessed. 11. There is a third infirmity in the order passed by the Magistrate. In our order dated 20-3-1985 we had directed him to adjudicate upon the case set up by the Petitioner that she had been put into possession in the said accommodation on the basis of the order of allotment and thereafter forcibly dispossessed therefrom. The Magistrate observed our direction in breach. 12. In our order dated 20-3-1985 we had directed him to adjudicate upon the case set up by the Petitioner that she had been put into possession in the said accommodation on the basis of the order of allotment and thereafter forcibly dispossessed therefrom. The Magistrate observed our direction in breach. 12. The order dated 22-3-1985 passed by the City Magistrate has not been challenged by the Petitioner. In fact she relies upon that order. As stated above, her only prayer is that, despite the order, a direction may be given to the Respondents to put her into possession, the order is before us. The City Magistrate is arrayed as one of the Respondents in this writ petition and he is represented by the Standing Counsel. Dr. Yadav is one of the Respondents in the writ petition. A counter-affidavit has been filed on his behalf and we hare heard his learned Counsel. The counsel has informed us that Dr. Yadav has preferred a revision application before the learned Sessions Judge and the same is pending its decision. Having regard to the peculiar facts of the case and particularly the fact that the learned Magistrate has passed the order in disregard of our direction, we consider it a fit case where we should exercise the power of superintendence vested in us under Article 227 of the Constitution. 13. We, accordingly, quash the order dated 22-3-1985 passed by the City Magistrate, Allahabad, and direct him to decide the matter afresh on -merits and in accordance with law within a period of one month from the date of production of a certified copy of the order of this Court before him. He is also directed to afford a fresh opportunity to the parties to file their respective written statements and to lead evidence in support of their respective cases, if they so desire. The parties are directed to bear their own costs.