BANI BOSE Vs. DISTRICT MAGISTRATE ALLAHABAD

JUDGEMENT

(1.) 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 cases 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 under section 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 under section l46 (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.) 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 under section 145 is the passing of a preliminary order under sub-section (1) of that provision. An order of attachment under section 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 subsection (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. 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 subsection (4) is important, it provides 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 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 proseeding 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.