D—Disputes as to immovable property
145. Procedure where dispute concerning land or water is likely to
cause breach of peace
(1)
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
(2)
For the purposes 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
(3)
A copy of the order shall be served in the manner provided by the Code for the
service of a
summons
upon such person or persons as the Magistrate may direct, and at least one copy
shall
be
published by being affixed to some conspicuous place at or near the subject of
dispute
(4)
The Magistrate shall then, without reference to the merits or the claims of any
of the parties,
to
a right to possess the subject of dispute, peruse the statements so put in,
hear the parties,
receive
all such evidence as may be produced by them, take such further evidence, if
any as he
thanks
necessary, and, if possible, decide whether and which of the parties was, at
the date of the
order
made by him under sub-section (1), in possession of the subject of dispute:
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 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)
(5)
Nothing in this section shall preclude any party so required to attend, or any
other person
interested,
from showing that no such dispute as aforesaid exists or has existed; and in
such case
the
Magistrate shall cancel his said order, and all further proceedings thereon
shall be stayed, but,
subject
to such cancellation, the order of the Magistrate under sub-section (1) shall
be final.
(6)
(a) If the Magistrate decides that one of the parties was, or should under the
proviso to subsection
(4)
be treated as being, in such possession of the said subject, he shall issue an
order
declaring
such party to be entitled to possession thereof until evicted therefrom in due
course of
law,
and forbidding all disturbance of such possession until such eviction; and when
he proceeds
under
the proviso to sub-section (4), may restore to possession the party forcibly
and wrongfully
dispossessed
(b)
The order made under this sub-section shall be served and published in the
manner laid down
in
sub-section (3)
(7)
When any party to any such proceeding dies, the Magistrate may cause the legal
representative
of the deceased party to be made a party to the proceeding and shall thereupon
continue
the inquiry, and if any question arises as to who the legal representative of a
deceased
party
for the purposes of such proceeding is, all persons claiming to be
representatives of the
deceased
party shall be made parties thereto
(8)
If the Magistrate is of opinion that any crop or other produce of the property,
the subject of
dispute
in a proceeding under this section pending before him, is subject to speedy and
natural
decay,
he may make an order for the proper custody or sale of such property, and, upon
the
completion
of the inquiry, shall make such order for the disposal of such property, or the
saleproceeds
thereof,
as he thinks fit
(9)
The Magistrate may, if he thinks fit, at any stage of the proceedings under
this section, on the
application
of either party, issue a summons to any witness directing him to attend or to
produce
any
document or thing
(10)
Nothing in this section shall be deemed to be in derogation of the powers of
the Magistrate
to
proceed under section 107
STATE AMENDMENT
Maharashtra:
In
section 145,—
(a)
in sub-section (1), for the words "whenever an Executive Magistrate"
the words "Whenever
in
Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an
Executive
Magistrate"
shall be substituted;
(a)
for sub-section (10), the following sub-section shall be substituted, namely:—
"(10)
In the case of an Executive Magistrate taking action under this section
nothing
in this section shall be deemed to be in derogation of his power to proceed
under section
107
In the case of a Metropolitan Magistrate taking action under this section, if
at any stage of
the
proceeding, he is of the opinion that the dispute calls for an action under
section 107, he shall
after
recording his reasons, forward the necessary information to the Executive
Magistrate
having
jurisdiction, to enable him to proceed under that section"
[Vide Maharashtra Act 1 of 1978 (wef
15-4-1978)
146. Power to attach subject of dispute and to appoint receiver -
(1)
If the Magistrate at any time after making the order under sub-section (1) of
section 145
considers
the case to be one of emergency, or if he decides that none of the parties was
then in
such
possession as is referred to in section 145, or if he is unable to satisfy
himself as to which of
them
was then in such possession of the subject of dispute, he may attach the
subject of dispute
until
a competent Court has determined the rights of the parties thereto with regard
to the person
entitled
to the possession thereof:
Provided
that such Magistrate may withdraw the attachment at any time if he is satisfied
that
there is no longer any likelihood of breach of the peace with regard to the
subject of dispute
(2)
When the Magistrate attaches the subject of dispute, he may, if no receiver in
relation to such
subject
of dispute has been appointed by any civil Court, make such arrangements as he
considers
proper for looking after the property or if he thinks fit Appoint a receiver
thereof, who
shall
have, subject to the control of the Magistrate, all the powers of a receiver
appointed under
the
Code of Civil Procedure, 1908 (5 of 1908):
Provided
that in the event of a receiver being subsequently appointed in relation to the
subject
of dispute by any civil Court, the Magistrate—
(a)
shall order the receiver appointed by him to hand over the possession of the
subject of dispute
to
the receiver appointed by the civil Court and shall thereafter discharge the
receiver appointed
by
him;
(b)
may make such other incidental or consequential orders as may be just
Comments
(i)
The determination of rights by the competent Court of the parties spoken of in
section 146 has
not
necessarily to be a final determination, it may be even tentative at the
interim stage when the
competent
Court passes an order of interim injunction or appoints a receiver in respect
of subject
matter
of dispute pending final decision in the suit; Dharampal v Smt Ramshri, 1993 (1) Crimes
304
(SC)
(ii)
Passing of order without proper enquiry is nullity; CKP Mennon v KP Sulaiman, 2000 Cr LJ
221
(Mad)
147. Dispute concerning right of use of land or water -
(1)
Whenever an Executive Magistrate is satisfied from the report of a police
officer or upon
other
information, that a dispute likely to cause a breach of the peace exists
regarding any
alleged
right of user of any land or water within his local jurisdiction, whether such
right be
claimed
as an easement or otherwise, 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
Explanation—The expression "land or water" has the
meaning given to it in sub-section (2) of
section
145
(2)
The Magistrate shall then peruse the statements so put in, hear the parties,
receive all such
evidence
as may be produced by them respectively, consider the effect of such evidence,
take
such
further evidence, if any, as he thinks necessary and, if possible, decide whether
such right
exists;
and the provisions of section 145 shall, so far as may be, apply in the case of
such inquiry
(3)
If it appears to such Magistrate that such rights exist, he may make an order
prohibiting any
interference
with the exercise of such right, including, in a proper case, an order for the
removal
of
any obstruction in the exercise of any such right:
Provided
that no such order shall be made where the right is exercisable at all times of
the
year,
unless such right has been exercised within three months next before the
receipt under subsection
(1)
of the report of a police officer or other information leading to the
institution of the
inquiry,
or where the right is exercisable only at particular seasons or on particular
occasions,
unless
the right has been exercised during the last of such seasons or on the last of
such
occasions
before such receipt
(4)
When in any proceedings commenced under sub-section (1) of section 145 the
Magistrate
finds
that the dispute is as regards an alleged right to user of land or water, he
may, after
recording
his reasons, continue with the proceedings as if they had been commenced under
subsection
(1);
and when in any proceedings commenced under sub-section (1) the Magistrate
finds
that
the dispute should be dealt with under section 145, he may, after recording his
reasons,
continue
with the proceedings as if they had been commenced under sub-section (1) of
section
145
STATE AMENDMENT
Maharashtra:
In
sub-section (1) of section 147, for the words "Whenever an Executive
Magistrate" the words
"Whenever
in greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an
Executive
Magistrate" shall be substituted
[Vide Maharashtra Act 1 of 1978 (wef
15-4-1978)
148. Local inquiry -
(1)
Whenever a local inquiry is necessary for the purposes of section 145, section
146 or section
147,
a District Magistrate or Sub-divisional Magistrate may depute any Magistrate
subordinate to
him
to make the inquiry, and may furnish him with such written instructions as may
seem
necessary
for his guidance, and may declare by whom the whole or any part of the
necessary
expenses
of the inquiry shall be paid
(2)
The report of the person so deputed may be read as evidence in the case
(3)
When any costs have been incurred by any party to a proceeding under section
145, section
146
or section 147, the Magistrate passing a decision may direct by whom such costs
shall be
paid,
whether by such party or by any other party to the proceeding, and whether in
whole or in
part
or proportion and such costs may include any expenses incurred in respect of
witnesses and
of
pleaders' fees, which the Court may consider reasonable
