Disputes over
land and water, crops and other produce of land and rights of user in respect
of immovable property often result in breach of the peace, violence and bloodshed.
Sections 145 and 146 of the Code of
Criminal Procedure (in short crpc) together constitute a scheme for the
resolution of a situation where there is likelihood of a breach of the peace
because of a dispute concerning any land or water or their boundaries.
Sub-section (1)
of Section 145 of crpc reads as: - Whenever 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.
Further Sub-section
(2) of Section 145, crpc says- For the purpose of this section, 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 order to
take preventive action under Section 145 two essential conditions must be satisfied,
(i) there must be dispute relating to land or other objects mentioned in
Subsection (1); and
(ii) the dispute is likely to cause a breach of peace.
The Magistrate exercising jurisdiction under Section 145, crpc must be satisfied about these two conditions either from a police report or from any other information which would include an application by the dispossessed person.
The Magistrate exercising jurisdiction under Section 145, crpc must be satisfied about these two conditions either from a police report or from any other information which would include an application by the dispossessed person.
On being
satisfied about the existence of a dispute likely to cause a breach of peace,
the Magistrate issues a preliminary order stating the grounds of his
satisfaction and calling upon the parties to appear before him and submit their
written statement.
On perusal
of the written statements he would proceed to record evidence to decide which
of the parties was in possession on the date of the preliminary order. If he
decides that-
(i) one of the parties was in possession he declares possession of such party;
(ii) if on the other hand he is unable to decide who was in possession, or
(iii) if he is of opinion that none of the parties was in such possession, he may say so.
(i) one of the parties was in possession he declares possession of such party;
(ii) if on the other hand he is unable to decide who was in possession, or
(iii) if he is of opinion that none of the parties was in such possession, he may say so.
If he
decides that one of the parties was in possession he declares the possession of
such property. In the other two situations he attaches the property. Thus a
proceeding began with a preliminary order followed up by an enquiry and end
with the Magistrate deciding in one of three ways and making consequential
orders.
The Magistrate
may, however, stop the proceedings at any time if one or the other of the
parties satisfies him that there has never been or that there is no longer any
dispute likely to cause a breach of the peace. The Magistrate then cancels the
preliminary order vide Section 145(5), crpc except in this event a proceeding
initiated by a preliminary order under Section 145(1) must run its full course.
Whether a
composite order of attachment of disputed property under Section 146, crpc can
be passed by the Magistrate while passing the preliminary order under Section
145(1), crpc?
A Magistrate who wants to pass an order under Section 146(1), crpc has at first to pass an order under Section 145(1), crpc in order to assume jurisdiction to attach the property under Section 146(1), crpc. There is nothing in the said two sections or in the Code of Criminal Procedure to prevent a Magistrate to pass the said orders in the same strain and in the same sitting, the order under Section 146(1) just following the order under Section 145(1) of the code.
A Magistrate who wants to pass an order under Section 146(1), crpc has at first to pass an order under Section 145(1), crpc in order to assume jurisdiction to attach the property under Section 146(1), crpc. There is nothing in the said two sections or in the Code of Criminal Procedure to prevent a Magistrate to pass the said orders in the same strain and in the same sitting, the order under Section 146(1) just following the order under Section 145(1) of the code.
A Magistrate
can pass a composite order of attachment on disputed property under Section
146(1) while passing the preliminary order under Section 145(1), crpc. But such
an order is only valid in the following circumstances
(i) the order under
Section 145(1) should be separately drawn than the order under Section 146(1),
crpc,
(ii) that the order under Section 145(1) must precede order under Section 146(1) crpc,
(ii) that the order under Section 145(1) must precede order under Section 146(1) crpc,
(iii) it must be borne out from both the orders that they satisfy
separately the existence of the conditions for drawing such orders under the
two sections.
The proceeding under Section 107, crpc are for public peace and tranquility whereas those under Section 145, crpc relate to dispute regarding possession between parties concerning any land or water or boundaries thereof.
There is no bar to filing criminal proceedings under Section 145, crpc over the same disputed immovable property for which civil proceedings are pending. The jurisdiction of the Magistrate under Sections 145 and 146, crpc to maintain peace will prevails over the orders of the civil court except where
(i) the determination of rights
by the civil court has become final, or
(ii) the civil court has appointed a
receiver.
An order made under Section 145, crpc deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.
An order made under Section 145, crpc deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the civil court. He may move the civil court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.
Disclaimer - All the contents are for general use and information. Consult your lawyer before acting.