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PETITIONER: CHANDU NAIK & ORS.

       Vs.

RESPONDENT: SITA RAM B. NAIK & ANR.

DATE OF JUDGMENT06/12/1977

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. KRISHNAIYER, V.R.

CITATION:  1978 AIR  333            1978 SCR  (2) 353  1978 SCC  (1) 210  CITATOR INFO :  R          1980 SC 242  (1,6)

ACT: Maharashtra   Vacant  Lands  (Prohibition  of   Unauthorised Occupation and Summary Eviction) Act, 1975, whether a bar to the proceedings u/s. 145 of the Criminal Procedure Code. Criminal  Procedure  Code (Act II of 1974),  1973,  s.  145, Scope of-Guidelines to be followed by the Magistrate.

HEADNOTE: On  an  application filed by respondent No. 1 on  29th  July 1975   allenging   that   the   appellants   have   forcibly dispossessed  him from a hotel known as "Suresh  Maharashtra Tea  &  Cold  Drinks & Eating House" owned  by  him  on  the disputed  land,  the Magistrate passed a  preliminary  order u/s.  145(1)  of  the Cr. P. C. and  attached  the  disputed property  u/s.  146(1) of the Code.  The appellants  put  in their written statements on 2-8-1975 and the case was  being heard  from  time to time.  On 11-11-1975,  the  Maharashtra Vacant  Lands  (Prohibition of Unauthorised  Occupation  and Summary  Eviction) Act, 1975 was brought into force  in  the area  where the disputed property is situated.  The Act  was passed  to prohibit unauthorised occupation of vacant  lands in  the  urban  areas of the State, of  Maharashtra  and  to provide  for  summary eviction or persons from  such  lands. Section  8 of the Act provides for a bar of jurisdiction  by courts.   Since  the  hotel was constructed on  a  piece  of vacant  land  in an "urban area" within the meaning  of  the Act,  the Magistrate passed an order on 21-1-77 taking-  the view  that  in view of s. 8 of the Act, he  ceased  to  have jurisdiction  to proceed with the case inasmuch as  he  will have to order eviction ,of the appellants from the  disputed property if the case of the respondent was found to be true. The  appellants  filed a revision in the Bombay  High  Court against the said order, but failed. Allowing  the  appeal  by special leave  and  directing  the Magistrate  to  dispose  of  the  proceedings  as  per   the guidelines indicated, the court. HELD  :  1. In the context of the Maharashtra  Vacant  Lands (Prohibition   of   Unauthorised  Occupation   and   Summary Eviction) Act, 1975, the bar in s. 8 is not attracted to any suit or proceeding in respect of the eviction of any  person

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from  any  vacant land started in relation to a  dispute  of possession   between  the  private  persons.   The  bar   is attracted if the suit or proceeding concerns the eviction of any person from any vacant land by the competent  authority. No suit or proceeding for eviction can be entertained by any court  if the competent authority is entitled to  evict  the person u/s. 4. He will be entitled to evict any person if he is in unauthorised occupation of vacant land but not in  the case of disputes between two private persons either of  them claiming to be in authorised occupation.  For deciding  such a  dispute, the competent authority does not come  into  the picture. [355 E-F] 2. In substance and effect a proceeding u/s 145 of the  Code is not  for the purpose of evicting any person from any land but is primarily concerned with the prevention of the breach of  the peace by declaring the party found in possession  to be entitled to remain in possession until evicted  therefrom in due course of law. [355 G] 3.Restoration  of  possession to the party  forcibly  and wrongfully  dispossessed  attracting  the  proviso  to  sub- section (4) is in substance and in effect, putting back  the party to possession for deciding his possession on the  date of  the  preliminary  order  made  under  sub-section   (1). Although the party who forcibly and wrongfully  dispossessed the other party attracting the application of the proviso to sub-section  (4)  of  section 145 of the  Code,  has  to  be factually  and  physically evicted from the property,  by  a legal fiction it is only for the purpose of treating him  in possession on the date of the preliminary order. [156 B-C] 354 4.In the instant case; the proceeding in question did not abate  and  it has to be disposed of by  the  Magistrate  in accordance with the provisions of law contained in  Sections 145 and 146 of. the Code.  If the proceeding has so  abated, attachment  order passed by the Magistrate on the 29th  July 1975 could not survive and the Magistrate could not allow it to  continue.  The Courts below have committed an  error  of law in applying the bar of s. 8 to the present  proceedings. The Courts below were wrong in the view that the proceedings abated and the Magistrate had no jurisdiction to dispose  it of  in accordance with the law in face of s. 8 of  the  1975 Act. [356 E-H, 357 A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 308 of 1977. Appeal  by Special Leave from the Judgment and  Order  dated 23rd/25th of March 1977 of the Bombay High Court in Criminal Revision Application No. 54 of 1977. P. H. Parekh for the appellants. Janendra Lal for respondent No. 1. M. N. Shroff for respondent No. 2. The Judgment of the Court was delivered by UNTWALIA, J. This is an appeal by special leave arising  out of  a proceeding under section 145 of the Code  of  Criminal Procedure,  1973-hereinafter called the Code,  initiated  at the instance of respondent no.  1 (for brevity,  hereinafter the  respondent).  The said respondent filed an  application on the 29th July, 1975 against appellants 1 and 2 before the Magistrate  alleging that there is a Hotel known as  ’Suresh Maharashtra  Tea & Cold Drinks & Eating House’ on  the  dis- puted  land  which  was owned by and in  occupation  of  the respondent.   The appellants forcibly dispossessed him  from

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the  Hotel  on  the 5th July 1975.   The  application  under section 145 was filed initially against appellants 1 and  2. But  at  the  instance of appellant number  3  he  was  also subsequently joined as a party, to the proceeding. The Magistrate passed a preliminary order under section  145 (1) of the Code on the 29th July, 1975 asking the parties to appear  before him and put in their written statements.   On the  same date, however, he attached the  disputed  property under  section  146(1) of the Code.  The appellants  put  in their written statements on the 2nd August 1975.  Thereafter the case was heard by the Magistrate from time to time. The  Maharashtra Vacant Lands (Prohibition  of  Unauthorised Occupation  and  Summary  Eviction)  Act,   1975-hereinafter called  the  Act,  came into force  replacing  an  Ordinance promulgated  earlier.  The Act was deemed to have come  into force,  in the area where the disputed property is  situated on  the  11th  November  1975.   It  seems  the  Hotel   was constructed  and is situated on a piece of "vacant land"  in an "urban area" within the meaning of the Act.  The Act  was passed  to prohibit unauthorised occupation of vacant  lands in  the  urban  areas of the State  of  Maharashtra  and  to provide  for  summary eviction of persons from  such  lands. The  Competent Authority under the Act was  empowered  under section 4 to evict persons from unautho- 355 rised  occupation  of vacant lands.  Section 8  of  the  Act which provides for a bar of- jurisdiction of courts reads as follows -               "No Court shall have jurisdiction to entertain               any suit, prosecution or other proceedings  in               respect of the eviction of any person from any               vacant  land under this Act or in  respect  of               any  order  made or to be made or  any  action               taken   or  to  be  taken  by  the   Competent               Authority in exercise of the powers  conferred               by  or under this Act or to grant any stay  or               injunction in respect of such order or action.               If  any  such  suit or  other  proceedings  in               respect  of  eviction of any person  from  any               vacant  land is pending on the appointed  date               in any Court, it shall abate; and it shall  be               lawful  for the Competent Authority  to  evict               such  person from unauthorised  occupation  of               the  vacant land under the provisions of  this               Act  and  to remove and forfeit  any  property               from such land as provided in this Act." The  Magistrate  in his order dated the  21st  January  1977 passed  in the proceeding aforementioned took the view  that in  view  of  section  8  of the  Act,  he  ceased  to  have jurisdiction to proceed with the case, in as much as he will have  to order eviction of the appellants from the  disputed property if the case of the respondent was found to be true. The appellant filed a revision in the Bombay High Court from the said older of the Magistrate but failed.  The High Court agreed  with the view taken by the Magistrate and  dismissed the revision.  Hence this appeal.  In our opinion the Courts below have committed an error  of law  in  applying  the  bar of  section  8  to  the  present proceeding.   Firstly in the context of the Act ’the bar  is not  attracted to any suit or proceeding in respect  of  the eviction  of  any  person from any vacant  land  started  in relation  to  a dispute of possession  between  two  private persons.   The  bar is attracted if the suit  or  proceeding concerns the eviction of any persons from any vacant land by the  Competent  Authority.   In  other  words,  no  suit  or

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proceeding  for eviction can be entertained by any court  if the  Competent  Authority is entitled to  evict  the  person under section 4. He will be entitled to evict any person  if he is in unauthorised occupation of vacant land, but not  in the  case of dispute between two private persons, either  of them claiming to be in authorised occupation.  For  deciding such  a dispute, the Competent Authority does not come  into the  picture.   Secondly,  in  substance  and  in  effect  a proceeding  under  section 145 of the Code is, not  for  the purpose  of  evicting  any  person  from  any  land  but  is primarily concerned with the prevention of the breach of the peace  by  declaring  the party found in  possession  to  be entitled to remain in possession until evicted therefrom  in due  course  of  law.  The proviso  to  sub-section  (4)  of section 145 states :                "Provided   that   if  it  appears   to   the               Magistrate  that any  party has been  forcibly               and wrongfully dispossessed within two  months               next before the date on which the report of  a               police   officer  or  other  information   was               received by the                10-1114SCI/77                356               .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 that               party  had been in possession on the  date  of               his order under sub-section (1)." Sub-section  6(a) treats the party dispossessed  within  the period  provided  for in the proviso to sub-section  (4)  as being in possession of the disputed land on the date of  the order made under subsection. (1).  Restoration of possession to the party forcibly and wrongfully dispossessed attracting the  proviso  to  sub-section (4) is, in  substance  and  in effect,  putting back the party to possession  for  deciding his  possession  on the date of the preliminary  order  made under  subsection (1).  Although the party who forcibly  and wrongfully  dispossessed  the  other  party  attracting  the application of the proviso to sub-section (4) of section 145 of the Code has to be factually and physically evicted  from the property, by a legal fiction it is only for the  purpose of treating him in possession on the date of the preliminary order.  Hence the courts below were wrong in their view that the proceeding abated and the Magistrate had no jurisdiction to  dispose  it  of in accordance with the law  in  face  of section 8 of the, Act.  If the proceeding had so abated  the attachment order passed by the Magistrate on the 29th  July, 1975 could not survive and the Magistrate could not allow it to continue as he has done in this case. We, therefore, hold that the proceeding in question in  this case  did  not  abate and it has to be disposed  of  by  the Magistrate   in  accordance  with  the  provisions  of   law contained  in  sections 145 and 146 of the  Code.   For  the guidance  of  the Magistrate, we think it expedient  in  the interest  of  justice  to indicate briefly  as  to  how  the Magistrate is to proceed for disposing of the proceeding’. The Magistrate, in the first instance, will try to  conclude the proceeding in accordance with the various provisions  of section  145  of  the Code.  If he is able  to  declare  the possession of either party on consideration of the  evidence adduced  or  to be adduced before him he would do  so.   In, that  even the other party will be forbidden  from  creating any  disturbance  of the possession  [including  the  deemed possession,  in case the application of the proviso to  sub- section  (4)  is found necessary] of The party  declared  in

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possession.  The Magistrate, then, will have to withdraw the attachment in accordance with the proviso to sub-section (1) of section 146, because, as per his order declaring a  party in  possession there would be no Ionizer any  likelihood  of the  breach of the peace with regard to the subject of  dis- pute.   The party not found in possession by the  Magistrate will  have  to seek the redress of his  grievance,  if  any, elsewhere.  If, however, the  Magistrate  decides that  none of the parties was in possession of the disputed property on the date of the order made under sub-section (1)  of section 145  or  if he is unable to satisfy himself as to  which  of them  was then ’in possession of the subject of  dispute  he need  not  lift the attachment until a competent  court  had determined  the  rights of the parties as  provided  for  in section 146(1).  In such a situation 357 recourse,  if necessary, may be taken to sub-section (2)  of section 146 of the Code either by the Magistrate or a  Civil Court, as the case may be. For  the  reasons stated above, we allow  this  appeal,  set aside the orders of the courts below, send back the case  to the  Magistrate and direct him to proposed to dispose it  of in the light of this judgment as expeditiously as  possible, because considerable delay has already occurred. S.R.                              Appeal allowed 358