Vs. Fatima A. Kindasa & Ors  INSC 512 (6 May 1997)
MAJMUDAR, M. JAGANNADHA RAO
Mr. Justice S.B. Majmudar Hon'ble Mr. Justice Jagannadha Rao Soli J. Sorabji
and J.G. Shah, Sr. Advs., M.D. Adkar, S.D. Singh, R. Sathyanarayanan and Manoj
K. Singh, Advs. with them for the Petitioner Shivaji M. Jadhav, Adv. (NP) for
following Judgment of the Court was delivered:
JAGANNADHA RAO, J.
special leave petition has been filed by the petitioner against the Judgment of
the High Court of Bombay dated 9.7.1996 dismissing the writ petition (criminal)
The High Court refused to quash the order of the learned Chief Metropolitan
Magistrate. 4th Court, Girgaum dated 26.4.1996. The Learned
Chief Metropolitan Magistrate dismissed the application of the petitioner filed
under Section 145 of the Code as Criminal Procedure on the ground that even as
per the case of the petitioner, she was out of possession for a period more
than two months before the date of the preliminary order of the magistrate
dated 16.3.1993 passed under Section 145(1). The Court pointed cut that as per
the case of the petitioner, she had been out of possession from November 1992
and, therefore, she could not take advantage of the proviso to sub-clause (4)
of Section 145. This order is challenged in this Special leave petition.
brief facts of the case are as follows:
petitioner is aged 75 years and is staying in one half of a house comprising
2500 sq. ft. in Malabar Hills.
Bombay. She says that the first respondent
approached her in November, 1991 for temporary accommodation to stay for two or
three months Subsequently, the second respondent, who is said to be the husband
of the 1st respondent joined her and both of them were not willing to vacate
premises i.e. the 2500 Sq. ft. on the ground floor of the house. Petitioner is
in possession of the remaining 2500 sq. ft. It is the specific case of the
petitioner that in the second week of November, 1992 when the petitioner was
out of Station for sometime, the respondents Nos. 1 and 2 with the help of some
other persons constructed a cement wall in the suit premises and divided the
ground floor consisting of 5000 Sq ft into half and half and that this amounted
of illegal occupation of 2500 Sq. ft., i.e. One half of the property, by the
respondents Nos. 1 and 2. It is stated that on 21/22.2.1993 the respondents
threatened the petitioner with dire consequences and, therefore, petitioner
gave a complaint to the Inspector of police, Gamdevi, Bombay on 26.2.1993.
the petitioner filed an application under Section 145 of the Cr.P.C. on
9.5.1993 before the learned Metropolitan Magistrate, 14th Court, Girgaum
seeking restoration of possession of the of 2500 Sq. ft. on the ground floor.
petitioner also refers to the filing of a civil suit for declaration and
injunction, namely, RAD No. 346/1992 by the respondents claiming tenancy rights
on the basis of alleged tenancy agreement and cheques on which the signatures
of the petitioner were allegedly forged. It is stated that the Court granted an
interim order initially in favour of the respondents but ultimately the same
was vacated and the said order was confirmed in appeal holding that there was
no prima facie proof of tenancy. It is also stated that in that case the
documents relied upon by the second respondent were held to be prima facie
forged documents. The petitioner also states that a complaint was made by the
petitioner against the respondents for cheating and a case was registered and
writ petition bearing No. 973/1993 dated 27.5.1992 was filed by the respondents
for quashing the same.
also stated by the petitioner that respondent filed criminal application No.
973/1993 on 27.7.1993 for quashing the section 145 criminal proceedings
launched by the petitioner but the said writ petition was dismissed. It appears
that at the request launched proceedings against the respondents under the Maharashtra
Vexatious Litigation (Prevention) Act, 1971 and the High Court of Bombay, after
noticing that the respondents wore illegally and forcibly occupying several
premises and were instituting various proceedings, came to the conclusion that
the said proceedings started by the respondents were vexatious and that they
should not be permitted to initiate fresh proceedings, except with the sanction
cf the Advocate General. It is also stated that respondents made an application
to the Metropolitan Magistrate for dropping of Section 145 proceedings and the
said application was rejected on 25.4.1995. Respondents filed a revision before
the Session Court bearing No. 189/1995, and the same was dismissed on 7.7.1995.
It is said that the respondents filed writ petition No. 1050/1995 challenging
the order dated 7.7.1995 and 25.4.1995 and the same was also dismissed by the
High Court on 8.12.1995.
at that juncture that the learned Magistrate took up the Section 145
proceedings launched by the petitioner and dismissed the same on 26.4.1996 on
the ground that the petitioner even as per her own case was out of possession
for more than two month before the passing of the preliminary order dated
16.3.1993 under sub-clause (1) of Section 145. Against the order of the learned
Chief Metropolitan Magistrate dated 26.4.1996 the petitioner filed writ
petition bearing No. 540/1996 before the High Court of Bombay and the same was
dismissed on 7.7.1996 holding that the petitioner was not in possession for
more than two months before the date of passing of preliminary order under
Section 145(1) on 16.3.1992. It is against this order of the High Court dated
9.7.12996 that this special leave petition has been filed.
was issued to the respondents in the special leave petition and notice was
served and at one time Mr. S.M. Jadhav appeared for the first respondent.
Separate notice was taken to the second respondent and was served on 9.9.1996.
The matter was finally heard on 23.4.1997. Even on that day Mr. S.M. Jadhav,
counsel for the first respondent did not appear nor was there any
representation for the second respondent.
senior counsel for the petitioner, Mr. Soli J. Sorabjee, contended that the
orders passed by the Chief Metropolitan Magistrate dated 26.4.1996 and the
further orders passed by the High Court on 9.7.1996 were liable to be set aside
as the possession of the respondents was a continuing wrong. He also contended
that this was a hard case in which an old lady aged about 75 years was being victimised
by the respondents who were in the habit of illegally occupying various
premises in Bombay and that in exercise of the powers
of this Court under Article 842 of the Constitution of India. This Court could
grant relief in spite of the fact that the dispossession was more than 2 months
next before the preliminary order under Section 145(1).
as the first submission of learned counsel is concerned, it may be stated that
as found by the learned Chief Metropolitan Magistrate in his order dated
26.4.1996 there was an earlier complaint lodged by the petitioner before the
concerned police authorities at Bombay wherein she admitted that the first
respondent was in illegal occupation even from 17.3.1992. In any event the
subsequent complaint filed by the petitioner before the police authorities on
26.2.1993 showed that the respondents had constructed a temporary wall. Even
earlier the petitioner had made a complaint to the Bombay Municipal corporation
on 12.11.1992 in regard to the same, and therefore the dispossession, at any
rate, was there by 12.11.1992. it is, therefore, clear that prima facie the
alleged unauthorised occupation or construction of the wall was there atleast
from November, 1992. It is, therefor, clear that prima facie the alleged unauthorised
occupation or construction of the wall was there atleast from November, 1992. if
that be so, the said occupation is clearly for a period in excess of 2 months
next before the date of the preliminary order dated 16.31993 passed under
Section 145(1) of the Cr. P.C. In this connection it is necessary to refer to
the provisions of sub-clauses (1) to (4) of Section 145, Cr. P.C.
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.
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.
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.
copy of the order shall be served in manner provided by this 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.
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 thinks necessary,
and, if possible, decide whether any 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." It will be seen from the facts stated above that the order under
Section 145(1) was passed by the learned Magistrate on 16.3.1993. The question
is whether the magistrate could have passed any order in favour of the
petitioner under Sub-section (4) of Section 145. Going by the main sub-clause
(4) of Section 145 it is clear that the Magistrate could initially decide who
was in possession as on the date when the order under Section 145(1) was passed
on 16.3.1993. In cases where the proviso to the said sub- clause (4) applied,
that is, if it appeared to the Magistrate that any party had been forcibly end
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), the
Magistrate might treat the party so dispossessed as if the said party had been
in possession on the date of his order under sub section (1). In other words,
if the conditions mentioned in the proviso to sub-section (4) were satisfied,
the Magistrate could deem a person to be in , possession as on the date of the
order under Section 145(1) notwithstanding the fact that he was not infact in
possession on that date. but lost possession earlier, Within two months next
before the order. In this case unfortunately there is no material to show that
any report of a police office or other information was received by the
Magistrate within the period contemplated by the proviso. On the other hand,
petitioner's admissions show that she lost possession much before the period
mentioned in the said proviso.
are, therefore, of the view that both the learned Chief Metropolitan Magistrate
and the High Court were right in coming to the conclusion that no order for
restoration of possession could be passed in favour of the petitioner under
Section 145 of the Cr. P.C. A contention was then raised that as the
dispossession of the petitioner was continuing, and it amounted to a continuing
wrong and, therefor, the proviso to sub-clause (4) must be deemed to be
satisfied. We are afraid that such a contention based on continuance of
dispossession. cannot be accepted.
next question is whether the petitioner is to be granted relief in exercise of
the powers of this Court under Article 142 of the Constitution of India.
Learned counsel for the petitioner strongly relied upon the judgment of this
Court in Union Carbide Corporation vs. Union of India (1991 (4) SCC 584) for
submitting that the prohibitions or limitations contained in ordinary laws
cannot, ipso facto, act as prohibitions or limitations on the constitutional
powers of this Court under Article 142. The following passage in the said
judgment was referred to :
power under Article 142 is at an entirely different level and of a different
quality. Prohibitions or limitations or provisions contained in ordinary laws
cannot, ipso facto, act as prohibitions or limitations on the constitutional
powers under Article 142. Such Prohibitions or limitations in the statutes
might embody and reflect the scheme of a particular law.
into account the nature and status of the authority or the court on which
conferment of powers- limited in some appropriate way - is contemplated. The
limitations may not necessarily reflect, or be based on any fundamental
considerations of public policy. Sri Sorabjee, learned Attorney General,
referring to Garg case, said that limitation on the powers under Article 142
arising from "inconsistency with express statutory provisions of
substantive law" must really mean and be understood as some express
prohibition contained in any substantive statutory law. He suggested that if
the expression 'prohibition' is read in place of `provision' that would perhaps
convey the appropriate idea. But we think that such prohibition should also be
shown to be based on some underlying fundamental and general issues of public
policy art not merely incidental to a particular statutory scheme or pattern.
It will again be wholly incorrect to say that powers under Article 142 are
subject to such express statutory prohibitions.
would convey the idea that statutory provisions override a constitutional
provisions. Perhaps, the proper way of expressing the idea is that in
exercising the idea is that in exercising powers under Article 142 and in
assessing the needs of "complete justice" of a cause or matter, the
apex Court will take note of the express prohibitions in any substantive
statutory provision based on some fundamental principles of public policy and
regulate the exercise of its power and discretion accordingly. The proposition
does not relate but only to what is or is not `complete justice' of a cause or
matter and in the ultimate analysis of the propriety of the exercise of the
power. No question of lack of jurisdiction or of nullity can arise."
Relying upon the aforesaid passage, learned senior counsel contended at the
limitation of two months in the proviso to Sub-clause (4) of Section 145 would
not come in the way for this Court while exercising powers under Article 142
far granting possession to the petitioner even though the dispossession of the
petitioner was for a period in excess of two months next before the date of the
preliminary order passed under Section 145 (1). It will be seen that even
according to the petitioner. she permitted the first respondent in December.
1991 temporarily occupy 2500 sq. ft.
ground floor of the promises. Subsequently the first respondent did not vacate
and on the other hand, the 1st respondent allowed the second respondent to
occupy the property claiming that he was her husband and thereafter they
constructed a wall dividing the said portion from the other portion occupied by
the petitioner. On these facts we do not find any social circumstances which
are different from ordinary cases where a person permits a licensee or a tenant
to occupy the premises and upon termination of the licensee or the lease, the
licensee or the tenant, as the case may be, does not vacate the premises or
makes some constriction on the property. No doubt the petitioner is an old lady
of 75 years and there is some material to show that the respondents 1 and 2
have been indulging in similar litigations in Bombay. But that in our opinion is not sufficient to pursuade us
to exercise powers under Article 142 of the Constitution of India. The
petitioner has adequate remedies under the law for recovery of possession.
the aforesaid reasons this special leave petition is dismissed.