KAMLA DEVI v. STATE OF UTTAT PRADESH — 1987 DIGILAW 347 (ALL)

B. L. YADAV, J. ( 1 ) -THIS is an application under section 482 of the Code of Criminal Procedure, 1973 (for short the Code) for quashing the proceedings pending in the Court of the City Magistrate, Kanpur Nagar in Case No. 2/86 (Smt Ram Piari v. Smt. Kamla Devi) under sections 145/146 of the Code. ( 2 ) THE facts of the case so far as they are relevant to dispose of the present application are these. An application - under section 145 of the Code was filed by Opposite Party No. 2 (hereinafter referred to as the first party) against the applicant, the second party. On that application the report dated 15-9-86 of the Station Officer, Chakeri was obtained and the learned Metropolitan Magistrate was satisfied on the basis of that report and other information that the dispute likely to cause breach of the peace exists in respect of Plot No. 87 Karamchari Nagar, Kanpur. A preliminary order under section 145 (1) of the Code was passed on 17-9-1986 by giving the details and surroundings of the plot (vide Annexure 4 to the affidavit page 22 of the paper. book ). Both parties were directed to appear on 30-9-1986 and to produce evidence in support of their possession. But the Metropolitan Magistrate considered the case to be one of emergency and he passed an order of attachment under section 146 (1), of the Code on 20-9-1986 in respect of Plot No. 87/116 (Annexure 10 to the affidavit page 38 of the paper book ). This order of attachment was sought to be given effect by the police by preparing a fard Kurki under section 146 of the Code. It was the case of the applicant that the fard Kurki was not prepared consistent with the order of attachment inasmuch as the order of attachment was passed in respect of Plot No. 87 and 116 as is clear from annexure 10 to the affidavit (page 40 of the paper book ). Whereas the fard Kurki was prepared by the police in respect of Plot No. 87 or 116. Further the grievance of the applicant was that while effecting the order of attachment a number of articles were taken out and the articles alongwith the house were sealed and given in the supurdagi of one Chandrapal Singh. Whereas the fard Kurki was prepared by the police in respect of Plot No. 87 or 116. Further the grievance of the applicant was that while effecting the order of attachment a number of articles were taken out and the articles alongwith the house were sealed and given in the supurdagi of one Chandrapal Singh. ( 3 ) IT was the case of the Opposite Party No. 2 the order of attachment was correctly passed and fard Kurki was correctly prepared in respect of Plot No. 116. ( 4 ) THE learned counsel for the applicant urged that the provisions of sections 145 (1) and 146 (1) of the Code were supplementary and complementary, in other words section 146 was a corollary and just cause quential to section 145. Only the land or the constructions in respect of which a preliminary order under section 145 (1) is passed, can be made the subject matter of attachment in case of emergency or other conditions provided under section 146 (1 ). The preliminary order was passed in respect of Plot No. 87 whereas the order of attachment was passed in respect of Plot No. 116, which was a different land. The attachment was effected by fard Kurki by taking out the articles from the house of the applicant and by virtually dispossessing the applicant, which was beyond the scope of section 146 (1 ). In other words the order of attachment must be consistent with the preliminary order under section 145 (1) and must be in respect of the possession of the subject of dispute. The moment an article was removed from the house, it becomes moveable property and the same cannot be made the subject of attachment. Sri Harihar Prasad Tripathi the learned counsel for the State of U. P. urged that the order under section 146 (1) of the Code was correctly passed and required no interference. The learned counsel for Opposite Party No. 2, on the other hand, urged that in fact the dispute was in respect of Plot No. 116 where the applicant was raising constructions with the help of her husband, hence the attachment order even in respect of Plot No. 116 was correctly passed and the attachment was in respect of plot where construction was being raised. The attachment was properly effected and the fard kurki was correctly prepared. The attachment was properly effected and the fard kurki was correctly prepared. It was further urged that in view of section 145 (2) of the Code the expression land or water used under section 145 (2) of the Code includes buildings etc. If the preliminary order has been passed in respect of Plot No. 87, it means that if the construction was raised in some other portion, Plot No. 116 or in other words if the construction was being carried on by the applicant in Plot No. 116, in that event the order of attachment cant also be passed in respect of Plot No. 116 and this was covered by the provisions of section 145 (2) of the Code. It was next contended that the relief claimed by the applicant was beyond the provisions of section 482 of the Code and the same deserves to be dis allowed. ( 5 ) HAVING heard the learned counsel for the parties the first point which requires determination is as to whether an order under section 146 (1) of the Code can be passed consistent with the order under section 145 (1) in respect of the same plot, or the order under section 146 (1) can be passed in respect of different plots or different constructions. The next point is as to whether the inclusive definition of expression land or watert given under section 145 (2) of the Code would cannot that in case order under section 145 (1) was passed in respect of one plot or land, can an order of attachment be passed in respect of a different plot or the building situated over it. The 1st point is as to whether the relief sought by the applicant was covered by the provisions of section 482 of the Code. The 1st point is as to whether the relief sought by the applicant was covered by the provisions of section 482 of the Code. ( 6 ) AS regards the first point, the relevant statutory provisions of sections 145 (1) and 146 (1) are set out below: p145 Procedure where dispute concerning land or water is likely to cause breach of peace (1) Wherever an Executive Magistrate is satisfied from a report of a police officer or 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 local 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, on a specified date and time, and to put in written statements of their respective 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, fiisheries, crops or other produce of land, and the rents or profits of any such property. 146. Power to attach subject of dispute and to appoint receiver: (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 urgency, or if he decides that none of the parties was then in such possession as is 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. TI ( 7 ) IN order to have a correct interpretation of the aforesaid provisions the intention of the givers (i. e. ANIMUS IMPONENTIS) has to be ascertained as expressed by the words employed in the relevant provisions. In Common, Wealth of Australia v. Bank of New South Wales1, it was held that in a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately as curtained from what it has chosen to enact, either in express words or by reasonable or necessary implications. In Common, Wealth of Australia v. Bank of New South Wales1, it was held that in a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately as curtained from what it has chosen to enact, either in express words or by reasonable or necessary implications. In the present case the intention of the legislature in express words appears to be that under Section 145 (1) the Executive Magistrate, on being so satisfied about the dispute concerning any land or water or the boundaries thereof, would pass a preliminary order. Under Section 146 in respect of the possession of the subject of dispute (as pointed out under section 145 (1) ) if the Magistrate at any time after preliminary order under Section 145 (1) considers the case to be one of emergency, he may attach the subject of the dispute until a competent court ha; determined the rights of the parties. A bare reading or these two provisions would indicate that the order of attachment under section 146 (1) can be passed only in respect of the land in respect of which an order under sub-section (1) of section 145 has been passed. It is apparent from the order under section 145 (1) (Annexure 4 page 22 of the paper book) that the preliminary order date 17-9-1986 was passed in respect of Plot No. 87 Karamchari Nagar, Kanpur. This very Plot No. 87 was the subject matter of dispute between the parties and there was an apprehension of breach of peace. There Was no mention of any other plot of land nor was there any mention made in the preliminary order about any construction being carried out either in Plot No. 87 or in respect of some other plot. ( 8 ) IT is manifest that section 146 is just a corollary or consequential to section 145 (1) and cannot go beyond that either in respect of subject of dispute or preliminary order in respect of Plot No. 87 Karamchari Nagar, Kanpur or in any other manner. Section 146 (1) is a part of section 145 (1 ). Section 146 (1) cannot exist independently of section 145 (1 ). To put it differently, the order under section 146 (1) cannot go against the subject of dispute in preliminary order. Section 146 (1) is a part of section 145 (1 ). Section 146 (1) cannot exist independently of section 145 (1 ). To put it differently, the order under section 146 (1) cannot go against the subject of dispute in preliminary order. From Challani Report (Annexure 5) to the affidavit) it was clear that only Plot No. 87 Karamchari Nagar, Kanpur was in dispute. Its surroundings are given in the report Challani and also in the preliminary order. The order of attachment (Annexure 10) was in respect of entirely different plot i. e. Plot No. 116 (vide page 40 of the paper book ). It was stated in the order of attachment dated 20-9-86 that the constructions appear to continue on Plot No. 116. If there was an apprehension of breach of peace in respect of Plot No. 87, why should order of attachment under section 146 (1) be passed in respect of different lad or constructions over Plot No. 116. ( 9 ) THE provisions of section 146 of the Code are couched in such a language that there is no room for doubt, that the order of attachment can be passed, in case of emergency, only in respect of the land, which was the subject of dispute under section 145 (1 ). In case the order of attachment has been passed in respect of different land or in respect of constructions alleged to be carried out over a different portion of land, in that event section 146 (1) would not co-relate to section 145 (1) as that would go against to object of section 146 (1), and would be doing violence to the language employed and against the expressed intention of legislature. The submission of the learned counsel for the Opposite Party No. 2 cannot be accepted without reading a different provision altogether, by employing different language, but I cannot read something more or entirely different than what has been enacted under section 146 (1 ). In this connection I am reminded of a discussion in Salmonds Jurisprudence, 11 Edition page 152 to the effect that duty of judicature is to act upon the intention of the legislature mens or Sententia Legis. The function of the Court is not to legislate but just to interpret. In this connection I am reminded of a discussion in Salmonds Jurisprudence, 11 Edition page 152 to the effect that duty of judicature is to act upon the intention of the legislature mens or Sententia Legis. The function of the Court is not to legislate but just to interpret. There is another maxim CONSTRUCTION EX VISCENT BUS ACTUS which connotes that every part of a statute must be construed with reference to context. (See M Pentias v. Veera Maltappa2. News Papers Ltd, v. State Industrial Tribunal3 and Canada Sugar Refinery C. V. R. 4. I am of the opinion that the order under section 146 (1) for attachment must be, passed concerning the same land in respect of which the preliminary order was passed and not in respect of different laid or constructions. 9. In the present case to order of attachment itself was passed in respect of different land i. e. plot No. 116 where the alleged construction appears to be continuing, and not in respect of Plot No. 87 Karamchari Nagar in respect of which the preliminary order under section 145 (1) was passed. I am accordingly of the view that the order of attachment was totally illegal and contrary to the preliminary order and the same cannot be sustained. ( 10 ) COMING to the second point about interpretation to be placed on section 145 (2) of the Code, sufficie it to state that infact section 145 (2) is just a definition clause indicating the expression land or water includes buildings, markets, fisheries, crops or other produce of land and the rents or profits of any such property. In fact section 145 (2) of the Code is an inclusive definition clause which means that the word indicated i. e. word land, and water, not only bears its ordinary popular or natural meaning but also it includes buildings on such land. But that inclusive definition clause would be made applicable only in respect of the land in respect of which order under section 145 (2) of the Code was passed. It means that in a case a preliminary order has been passed in respect of a particular piece of land. The buildings over that piece of land can also be deemed to have been included in that land. In the present case the land in respect of which the preliminary order was passed was Plot No. 8? It means that in a case a preliminary order has been passed in respect of a particular piece of land. The buildings over that piece of land can also be deemed to have been included in that land. In the present case the land in respect of which the preliminary order was passed was Plot No. 8? in case some construction raised on that plot was also in dispute, that could be covered by the inclusive definition clause of section 145 (2) of the Code. But in the instant case the alleged construction was situated on Plot No. 116 as appears from Annexure 10 to the affidavit on page 40 of the paper book ). The inclusive definition clause cannot mean that the building or the constructions situated on different land can also be made subject matter of attachment even though the preliminary order under section 145 (1) of the Code was actually passed in respect of different land i. e. Plot No. 87. The inclusive definition clause, therefore, does not cannot that the building or the construction situated over entirely different land can also be included for passing an order of attachment under section 146 (1) of the Code. I am therefore, unable to accept the interpretation placed by the learned counsel for the opposite party on section 145 (2) of the Code. ( 11 ) THE next point which requires consideration is as to whether the order of attachment can be effected by taking out the articles from inside the house or by virtually dispossessing the person in its occupation. As in the instant case, from the fard kurki (Annexure II to the affidavit page 42 of the paper book), it appears that a number of articles were taken out from the house and they were attached. Similarly it appears that the applicant was virtually in dispossession, and thereafter the order of attachment was affected. It is better to ascertain the actual import of the word attachment. According to Shorter Oxford English Dictionary the word attachment connotes to place or take under the control of the Court, to arrest or seize by an authority of a writ of attachmentt and the word attachmentt connotes the taking of property into the actual or constructive possession of the judicial power. According to Shorter Oxford English Dictionary the word attachment connotes to place or take under the control of the Court, to arrest or seize by an authority of a writ of attachmentt and the word attachmentt connotes the taking of property into the actual or constructive possession of the judicial power. According to Webesters Third New International Dictionary the word attachment connotes seizure or taking into custody by virtue of a legal process; the writ or precept commending such seizure. In the present context the power to attach the subject of dispute would mean the taking of property into actual or constructive possession of the judicial power. In other words the object of attachment is to keep the property in custodia legis so as to prevent the parties from creating breach of peace in their attempts to take actual possession of the property. See Deo Kuer v. Sheo Prasad Singh and others5. After attachment the property remains in possession of court but on behalf of the party or person found entitled by a competent court. The legal possession being however, of true owner, the attachment does not operate as dispossession of true owner. It means that the property has to be attached in the very form it exists. If some articles are inside the house they should be taken out or removed from the place where they were kept. From a perusal of the fard kurki it does appear that the articles were taken out from the house and thereafter given under attachment. In case articles were taken from inside the house, this only leads to the conclusion that the person in whose possession the property has been dispossessed or deprived of the house and articles kept in the house. This was not the object of attachment under section 146 (1) of the, Code. In view of this I am of the opinion that the fard Kurki or the actual proceedings of attachment were made contrary to the provisions of section 146 (1 ). ( 12 ) COMING to the last point as to whether the instant case was covered within the scope of inherent power and whether there exist conditions for the exercise of the said inherent power by this Court. It is better to see out the statutory provisions of section 482 of the Code as below: 482. Saving of inherent powers of High Court. It is better to see out the statutory provisions of section 482 of the Code as below: 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the present case there is no doubt that the proceedings under section 145 of the Code were pending before the Metropolitan Magistrate who was a Court under Chapter II, section 6 of the Code being passed in respect of different land, than the land in respect of which the preliminary order was passed. A bare reading of sections 145 and 146 of the Code would indicate that an order of attachment under section 146 (1) of the Code can be passed only in respect of a land in respect of which the preliminary order has been passed and not in respect of different land. As the preliminary order was passed in respect of Plot No. 87 Karamchari Nagar, Kanpur, hence the order of attachment must have also been passed in respect of Plot No. 87 Karamchari Nagar, Kanpur and not in respect of Plot No. 116 where the construction were alleged to be in progress. In this view of the matter the learned Metropolitan Magistrate appears to have taken an incorrect view of the provisions of sections 145 (1) and section 146 (1) of the Code and he has passed an order of attachment in respect of different land other than in respect of which the preliminary order was passed. Similarly apparent mistake was committed in preparing the fard kurki also inasmuch as the articles were taken out from the house and the occupier of the house appears to have been virtually dispossessed which was not meaning of the order of attachment nor was this warranted from the provisions of section 146 of the Code. Similarly apparent mistake was committed in preparing the fard kurki also inasmuch as the articles were taken out from the house and the occupier of the house appears to have been virtually dispossessed which was not meaning of the order of attachment nor was this warranted from the provisions of section 146 of the Code. I am accordingly satisfied that the order of attachment passed under section 146 of the Code dated 20-9-1986 (Annexure 10 page 38 of the paper book) was in respect of different land and construction, and similarly the fard kurki (Annexure 11) was not correctly prepared, in respect of the land in respect of which the preliminary order was passed. Consequently, the order of attachment dated 20-9-86 (Annexure 10 to the affidavit) and similarly the fard kurki (Annexure 11) to the affidavit were illegally prepared and same cannot be sustained. ( 13 ) IN view of the discussions made herein before the present application succeed and is accordingly allowed and the order of attachment dated 20-9-1986 passed under section 146 (1) of the Code (Annexure 1) and the fard kurki (Annexure 11) are quashed. As an inevitable corollary, the order of attachment would be withdrawn and the property and the articles attached would be released in favour of the person from whose possession they were attached. .