Disputes concerning immovable property threatening breach of Peace
Chapter XII Cr.P.C confer powers on the Magistrate 1st class on his satisfaction as to take preventive measures to ward off endangered disruption in respect of disputes relating to immovable property and maintain peace and tranquility.
145 Cr.P.C is self contained and explanatory. A magistrate if he is satisfied that a dispute likely to cause breach of peace exists and it is on such satisfaction that he shall makes a preliminary order under sub-section (1) and thereafter make an inquiry under sub-section (4) for deciding whether any and, if so, which of the parties was at the date of the order is in possession; and for this purpose according to the first proviso to this sub-section, he may treat the party which had within two months next before the date of the order been forcefully and wrongfully dispossessed, as if he had been in possession at such date, and if in the result of the inquiry he decides that one of the parties is or should be treated as being in such possession, he shall under sub-section (6) issue on order declaring such party to be entitled to possession until evicted there from in due course of law and if he proceeds under the first proviso to sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed. The inquiry should be limited to the question as to who was in possession in fact on the date of preliminary order irrespective of the question as to the right to possession of the parties or to their title to the property. Since the pre-condition to the applicability of s. 145 Cr.P.C is the existence of a dispute likely to cause disturbance of the peace, sub-section 5 requires the magistrate, in case no such dispute exists or has ceased to exist, to cancel his order made and stay all further proceedings.
The requirements before exercising jurisdiction u/s 145 Cr.P.C are:-
- The existence of a dispute.
- Such dispute is likely to cause breach pace.
- Dispute concerning land or water or the boundaries thereof:-
- Dispossession if alleged is within two months prior to the initial order passed by the Magistrate.
- Dispute is within the territorial jurisdiction of the Magistrate concerned.
Primary object of the proceedings u/s 145 Cr.P.C is to prevent the breach of peace between the parties and not to facilitate one of them in the settlement of their civil dispute.
Nature of proceedings:
Proceedings u/s 145 Cr.P.C are in the nature of civil proceedings and subservient to the determination of civil rights by civil courts.
Attachment of property u/s 145
Order of attachment falls under second proviso to S. 145 (4) Cr.P.C. The object of attachment is to keep effective control of the subject in dispute so as to prevent the contesting parties from committing a breach of the peace in their attempts to obtain physical possession.
Attachment of property u/s 145 a step to avoid bloodshed and frustrate any attempt to breach the peace, which cannot be achieved by temporary stay granted by civil court with respect to part of property. Attachment of property by Magistrate would be unexceptionable when position before him was hazy and there were claims and counter claims from both side.
Dower to attach subject of dispute
S. 146 Cr.P.C deals with the power of Magistrate to attach subject of dispute. This power is to be exercised having complied with the provision of S. 145 Cr.P.C. As such proceedings under this section can only be invoked when the Magistrate has completed an inquiry u/s 145 and recorded finding u/s 145 (4). Even if neither party is found in possession and apprehension of a breach of the peace still exists, the Magistrate cannot discharge the proceedings on the findings that neither party’s possession is proved, and he can still proceed to make an order u/s. 146 attaching the property until a civil court has determined the rights of the parties or of the persons entitled to possession thereof.
Disputes concerning rights of use of immovable property
147 which is an amplification of S. 145 Cr.P.C refers to any right of use of land or water as explained in S. 145 (2) Cr.P.C. This section is not limited in its term to easement but relate to any dispute concerning the right of use of land or water. This section comes into operation only if the right is exercised within three months of the dispute in cases of rights exercised at all times of the year, or is exercised at the last particular occasion or season periodically recurring rights.
The procedure at the inquiry is the same as that provided by S. 145 Cr.P.C. If the inquiry shows that the right exists the Magistrate may make an order prohibiting any interference with the exercise of the right. If it appears that the right does not exists, an order may be made prohibiting the exercise of the rights. In any event the order will ensure till the decision of civil court is obtained.