Legal Interpretation from Ayodhya Verdict Part 10
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Jay Shree Ram!
These are some notes from Ayodhya
Verdict regarding legal interpretations of certain statutory provisions:
Section 145:
Section 145(1)
can
be invoked on the satisfaction of the Magistrate that ―a dispute likely to
cause a breach of the peace exists…‖. The provision relates
to disputes regarding possession of land or water or its boundaries which may
result in breach of the peace. The function of the Magistrate is not to go into
questions of title, but to meet the urgency of the situation by maintaining the
party in possession. The Magistrate is empowered to call upon the parties to
put in written statements in support of their claim to “actual possession”.
Such an order is to be served as a summons upon the parties. The Magistrate is
to peruse the statements, hear the parties and weigh the evidence, in order to
ascertain who was in possession at the date of the order. The Magistrate may
make that determination “if possible” to do so. Moreover, the determination is
about the factum of possession on the date of the order ―without reference to
the merits of the claim of any of such parties to a right to possess the
subject of the dispute‖.
These words indicate that the Magistrate does not decide or adjudicate upon the
contesting rights to possess or the merits of conflicting claims. The
Magistrate is concerned with determining only who was in possession on the date
of the order. If possession has been wrongfully taken within two months of the
order, the person so dispossessed is to be taken as the person in possession.
In cases of emergency, the Magistrate can attach the subject of the dispute,
pending decision. The action ultimately contemplated under Section 145
is not punitive, but preventive, and for that purpose is provisional only till
a final or formal adjudication of rights is done by a competent court in the
due course of law. Thus, nothing affecting the past, present and future rights
of parties is contemplated under the provision.
The Magistrate declares the party
which is entitled to possession “until evicted therefrom in due course of law.”
While proceeding under the first proviso, the Magistrate may restore possession
to a party which has been wrongfully and forcibly dispossessed.
The Magistrate does not purport to
decide a party's title or right to possession of the land but expressly
reserves that question to be decided in due course of law. The foundation of
his jurisdiction is on 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 a civil court makes an order of eviction, it
displaces the order of the criminal court.
It is well settled that a decision by
a criminal court does not bind the civil court while a decision by the civil court
binds the criminal court. – Sarkar
A decision given under Section 145
of the Code has relevance and is admissible in evidence to show: (i) that there
was a dispute relating to a particular property; (ii) that the dispute was
between the particular parties; (iii) that such dispute led to the passing of a
preliminary order under Section 145(1) or
an attachment under Section 146(1),
on the given date; and (iv) that the Magistrate found one of the parties to be
in possession or fictional possession of the disputed property on the date of
the preliminary order.
The civil court shall also respect
such order and will be loath to arrive at an interim arrangement inconsistent
with the one made by the Executive Magistrate. However, this is far from
holding that the civil court does not have jurisdiction to make an order of
injunction inconsistent with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not as a rule but as an
exception.
It is a settled position of law that
the observations made in the proceedings drawn under Section 145
CrPC do not bind the competent court in a legal proceeding initiated before it.
– Deepak Misra, CJ
Property held under attachment under
Section 145
is “custodia legis”.
The words ―competent court‖ as used
in sub-section (1) of
Section 146
of the Code do not necessarily mean a civil court only. A competent court is
one which has the jurisdictional competence to determine the question of title
or the rights of the parties with regard to the entitlement as to possession
over the property forming the subject-matter of proceedings before the
Executive Magistrate.
It is only in cases where civil suit
is for possession or for declaration of title in respect of the same property
and where reliefs regarding protection of the property concerned can be applied
for and granted by the civil court that proceedings under Section 145
should not be allowed to continue. This is because the civil court is competent
to decide the question of title as well as possession between the parties and
the orders of the civil court would be binding on the Magistrate.
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