Report No. 41

12.7. New su.-section (5A).-

The third proviso to the existing section 145(4) enables the Magistrate to attach the property if he considers the case to be one of emergency. In the earlier Report1 the Commission recommended that it should be made clear that the order of attachment could be passed at any time after the main order under su.-section (1) had been passed. It further recommended two new su.-sections providing for matters consequential to attachment. We agree that these provisions are necessary but they may be made in one su.-section as follows.-

"(5A) If the Magistrate, at any time after making the order under su.-section (1), considers the case to be one of emergency, he may attach the property which is the subject of dispute, pending his decision under this section, and make such arrangements as he considers proper for looking after the property. The Magistrate may, if he thinks fit, appoint a receiver who, subject to his control, shall have all the powers of a receiver appointed under the Code of Civil Procedure, 1908; and if in any such case the order of the Magistrate under su.-section (1) is cancelled under su.-section (5), the Magistrate shall withdraw the attachment and make such consequential or incidental orders as may be just."

1. 37th Report, para. 375.

12.8. Su.-section (6).-

With reference to su.-section (6) of section 145, the Commission recommended in the earlier Report1 a specific provision to the effect that the order made under su.-section (6) shall be served and published in the manner laid down in su.-section (3). A sentence to this effect may be added to su.-section (6).

No other amendments of substance are required in section 145.

1. 37th Report, para. 387.

12.9. Section 14.- reversion to pr.-1955 position recommended.-

Before 1955 the procedure under section 146 was short and simple. If the Magistrate decided that none of the parties was in possession, or if he was unable to satisfy himself as to which party was in possession, then he had the power to attach the property "until a competent court has determined the rights of the parties thereto, or the person entitled to possession thereof". The amendment of 1955 introduced a novel scheme, whereunder in such cases, besides attaching the property, the Magistrate has to draw up a statement of the facts of the case and to forward the record of the proceedings to a competent civil court, for deciding the question of possession.

Further, the Magistrate has to direct the parties to appear before a civil court on a date to be fixed by the Magistrate. The object of this amendment was to shorten the overall time taken in the criminal proceedings and the subsequent civil proceedings. The new procedure was examined in the earlier Report1 and both theoretical and practical objections were raised. Theoretically the procedure was anomalous, since it contemplated a reference to a civil court as a part of the proceedings in a criminal court.

The main object of the proceedings under this Chapter was to take steps for immediately preventing a breach of the peace, and once those steps were taken, the proceedings in the criminal court should come to an end. As regards the practical working of the amendment of 1955, dissatisfaction had been expressed in several quarters. The earlier Report, therefore, recommended restoration of the former position. We are also of the same view.

The section may be revised as follows.-

"146. Power to attach subject of dispute.- (1) If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof:

Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit, and if no receiver of property, the subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure, 1908:

Provided that in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, the Magistrat.-

(a) shall order that the receiver appointed by him shall hand over possession to such receiver and shall thereupon be discharged, and

(b) may make such other consequential or incidental orders as may be just."

1. 37th Report, paras. 392 to 394.

12.10. Section 14 su.-section (1) revised.-

Section 147 deals with the power of Magistrates to intervene in cases where the dispute is in regard to right of user of any land or water, whether such right is claimed as an easement or otherwise.

Su.-section (1) of section 147 may be revised on the same lined as su.-section (1) of section 145 to read as follows.-

"(1) When an Executive Magistrate is satisfied, from the report of a police officer or 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.

Explanatio.-The expression "land or water" has the meaning given to it in su.-section (2) of section 145."

12.11. Su.-section (2) amended.-

In regard to su.-section (2), there is a conflict of decisions as to the scope of the words "prohibiting any interference with the exercise of such right". The Commission, after noting this conflict in the earlier Report,1 recommended that the position should be clarified so as to empower the Court to order in a proper case, the removal of any obstruction in the exercise of any such right. In the proviso to this su.-section, it was recommended that instead of "three months next before the institution of the inquiry", it should be "three months next before the receipt under su.-section (1) of the report of a police officer or other information." We agree with both these amendments.

1. 37th Report, para. 398.

12.12. New section 147A.-

It was noted in the earlier Report1 that there was a controversy as to whether a proceeding brought under section 145 could be converted into one under section 147, and vice versa. The Commission considered it desirable to empower the Magistrate.to proceed under whichever section he found to be applicable, irrespective of the view taken at the stage of initiating proceedings. The following new section may be added for this purpose.-

"147A. Convertibility of proceedings under sections 145 and 147.- When in any proceedings commenced under su.-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under su.-section (1) of section 147, and when in any proceedings commenced under su.-section (1) of section 147 the Magistrate finds that the dispute should be dealt 4ith under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under su.-section (1) of section 145."

1. 37th Report, para. 401.

12.13. Section 148(1).-

In the earlier Report,1 the Commission recommended the addition of a reference to the Chief Presidency Magistrate in section 148(1) on the assumption that in Presidenc.-towns, the Chief Presidency Magistrate will also function as the Chief Executive Magistrate. Since ,in the scheme now proposed for metropolitan areas, there will be District Magistrates and Su.-divisional Magistrates as in other districts, no amendment is required in this section.

1. 37th Report, para. 402.