# CHANDU NAIK & ORS v. SITA RAM B. NAIK & ANR

- **Citation:** [1978] 2 S.C.R. 353
- **Court:** Supreme Court of India
- **Decided:** 1977-12-06
- **Case number:** Criminal Appeal No. 308 of 1977
- **Bench:** V. R. Krishna Iyer, N. L. Untwal!A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandu-naik-ors-v-sita-ram-b-naik-anr-7380
- **Pages:** 5

## Headnote

!vlaharashtra
Vacant Lands
(Prohibition of
Unauthorised
Occupiition
.and Summary Eviction) Act, 1975, whether a bar to the proceedings uls. 145
cf the Criminal Procedure Code.
Criminal Procedure Code (Act II of 1974), 1973, s. 145, Scope of-Guide-
.lines to be followed by the Magistrate.
On an application filed by respondent No. I on 29th July 1975 allenging
that the appellants have forcibly dispossessed him from a hotel known as "Suresh
Maharashtra Tea & Cold Drinks & Eating House" owned by him on
the
<lisputed land, the Magistrate passed a preliminary order u/s. 145(1) of the
Cr. P. C. and attached the disputed property u/s. 146(1) of the Code. The
appellants put in their written statements on 2-8-1975 and the case was being
heard from time to time. On 11-11-1975, the Maharashtra Vacant Lands
(Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 was
brought into force in the area where the disputed property is situated. The Act
was passed to prohibit unauthorised occupation of vacant lands in the urban
areas of the State of Maharashtra and to provide for summary eviction or
persons from such lands. Section 8 of the Act provides for a bar of jurisdiction by courts. Since the hotel was constructed on 'a piece of vacant land in
an "«rban area" within the meaning of the Act, the Magistrate passed an order
on 21-1·77 tiling the view that in view of s. 8 of the Act, he ceased to have
ju1i~diction to proceed with the case inasmuch as he will have to order eviction
of the appellants from the disputed property if the case of the respondent was
found to be true. The appellants filed a revision in the Bombay High Court
against the said order, but failed.
Allowing the appeal by special leave and directing the Magistrate to dispose
<Qf the proceedings as per the guidelines indicated, the court.
HELD : !. In the context of the Maharashtra Vacant Lands (Prohibition
of Unauthorised Occupation and Summary Eviction) Act, 1975, the bar in s. 8
is not attracted to any suit or proceeding in respect of the eviction of any person
from any vacant land started in relation to a dispute of possession between the
private persons. The bar is attracted if the suit or proceeding concerns the
eviction of any person from any vacant land by the competent authority. No
suit or proceeding for eviction can be entertained by any court if the competent
authority is entitled to evict the person u/s. 4. He will be entitled to evict
any person if he is in unauthorised occupation of vacant land but not in the
case of disputes between two private persons either of them claiming to be in
authorised occupation. For deciding such a dispute, the competent authority
does not come into the picture.
[·355 E-F]
2. In substance and effect a proceeding u/s. 145 of the Code is not for the
purpose of evicting any person from any land but is primarily concerned with
the prevention of the breach of the peace by declaring the party found in posses·
sion to be entitled to remain in possession until evicted therefrom in due course
of law. [355 G]
3. Restoration of possession to the party forcibly and wrongfully dispossessed
attracting the proviso to sub·section ( 4) -is in substance and in effect, putting
back the party to possession for deciding his possession on the date of the pre~
Iiminary order made under sub·section (1). Although the party who forcibly
and wrongfu1ly dispossessed the other party attracting the application of the
proviso to sub-section (4) of section 145 of the Code, has to be factually and
physically evicted from the property, by a legal fiction it is only for the purpose
of treating him in possession on the date of the preliminary order. [356 B-CJ
A
B
c
D
E
F
H
A
B
354
SUPREME COURT REPORTS
[1978] 2 S.C.R.
4. In the instant case; the proceeding in question did not abate and it bas
to be disposed of by the 1fagistrate in accordance with the provisions of law
contained in Sections 145 and 146 of the Code. If the proceeding has so abated
attachm

## Text

\ '
353
CHANDU NAIK & ORS.
v.
SITA RAM B. NAIK & ANR.
December 6, 1977
[V. R. KRISHNA IYER AND N. L. UNTWAL!A, JJ.]
!vlaharashtra
Vacant Lands
(Prohibition of
Unauthorised
Occupiition
.and Summary Eviction) Act, 1975, whether a bar to the proceedings uls. 145
cf the Criminal Procedure Code.
Criminal Procedure Code (Act II of 1974), 1973, s. 145, Scope of-Guide-
.lines to be followed by the Magistrate.
On an application filed by respondent No. I on 29th July 1975 allenging
that the appellants have forcibly dispossessed him from a hotel known as "Suresh
Maharashtra Tea & Cold Drinks & Eating House" owned by him on
the
<lisputed land, the Magistrate passed a preliminary order u/s. 145(1) of the
Cr. P. C. and attached the disputed property u/s. 146(1) of the Code. The
appellants put in their written statements on 2-8-1975 and the case was being
heard from time to time. On 11-11-1975, the Maharashtra Vacant Lands
(Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975 was
brought into force in the area where the disputed property is situated. The Act
was passed to prohibit unauthorised occupation of vacant lands in the urban
areas of the State of Maharashtra and to provide for summary eviction or
persons from such lands. Section 8 of the Act provides for a bar of jurisdiction by courts. Since the hotel was constructed on 'a piece of vacant land in
an "«rban area" within the meaning of the Act, the Magistrate passed an order
on 21-1·77 tiling the view that in view of s. 8 of the Act, he ceased to have
ju1i~diction to proceed with the case inasmuch as he will have to order eviction
of the appellants from the disputed property if the case of the respondent was
found to be true. The appellants filed a revision in the Bombay High Court
against the said order, but failed.
Allowing the appeal by special leave and directing the Magistrate to dispose
<Qf the proceedings as per the guidelines indicated, the court.
HELD : !. In the context of the Maharashtra Vacant Lands (Prohibition
of Unauthorised Occupation and Summary Eviction) Act, 1975, the bar in s. 8
is not attracted to any suit or proceeding in respect of the eviction of any person
from any vacant land started in relation to a dispute of possession between the
private persons. The bar is attracted if the suit or proceeding concerns the
eviction of any person from any vacant land by the competent authority. No
suit or proceeding for eviction can be entertained by any court if the competent
authority is entitled to evict the person u/s. 4. He will be entitled to evict
any person if he is in unauthorised occupation of vacant land but not in the
case of disputes between two private persons either of them claiming to be in
authorised occupation. For deciding such a dispute, the competent authority
does not come into the picture.
[·355 E-F]
2. In substance and effect a proceeding u/s. 145 of the Code is not for the
purpose of evicting any person from any land but is primarily concerned with
the prevention of the breach of the peace by declaring the party found in posses·
sion to be entitled to remain in possession until evicted therefrom in due course
of law. [355 G]
3. Restoration of possession to the party forcibly and wrongfully dispossessed
attracting the proviso to sub·section ( 4) -is in substance and in effect, putting
back the party to possession for deciding his possession on the date of the pre~
Iiminary order made under sub·section (1). Although the party who forcibly
and wrongfu1ly dispossessed the other party attracting the application of the
proviso to sub-section (4) of section 145 of the Code, has to be factually and
physically evicted from the property, by a legal fiction it is only for the purpose
of treating him in possession on the date of the preliminary order. [356 B-CJ
A
B
c
D
E
F
H
A
B
354
SUPREME COURT REPORTS
[1978] 2 S.C.R.
4. In the instant case; the proceeding in question did not abate and it bas
to be disposed of by the 1fagistrate in accordance with the provisions of law
contained in Sections 145 and 146 of the Code. If the proceeding has so abated
attachment order passed by the Magistrate on the 29th July 1975
could
nof
survive and the Magistrate could not allow it to continue.
The Courts below
have committed an error of law in applying the bar of s. 8 to the present pro4
ceedings.
The Courts below were wrong in the view
that
the
proceedings
abated and the 1fagistrate had no jurisdiction to dispose it of in accordance
with the.law in face of s. 8 of the 1975 Act.
[356 E-H, 357 A]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 308
of 1977.
Appeal by Special Leave from the Judgment and Order dated
23rd/25th of March 1977 of the Bombay High Court in Criminfil
Revision Application No. 54 of 1977.
C
P. H. Parekh for the appellants.
D
E
F
G
H
Janendm Lal for respondent No. I.
M. N. SiirojJ for respondent No. 2.
Th~ Jndgment of the Court was delivered by
UNTWALIA, J. This is an appeal by special leave arising out of a
proceeding under section 145 of the Code of Criminal Procedure,
1973-hereinafter called the Code, initiated at the instance of respon·
dent no. 1 (for brevity, hereinafter the respondent).
The said respondent filed an application on the 29th July, 1975 against appellants
1 and 2 before the Magistrate alleging that there is a Hotel known as
'Suresh Maharashtra Tea & Cold Drinks & Eating House' on the disputed land which was owned by and in occupation of the respondent.
The appellants forcibly dispossessed him from the Hotel on the 5th
July 1975.
The application under section
145 was
filed initfally
against appellants I and 2. But at the instance of appellant number
3 he was also subsequently joined as a party. to the proceediilg.
The Magistrate passed a preliminary order
under section 145
(1) of the Code on the 29th July, 1975 asking the parties to appear
before him and put in their written statements. On the same date,
however, he attached the disputed property under section 146(1) ot
the Code.
The appellants put in their written statements on the 2nd
August J 975.
Thereafter the case was heard by the Magistrate from
time to time.
The Maharashtra Vacant Lands
(Prohibition of Unauthorised
Occupation and Summary Eviction) Act, 1975-hereinafter called the
Act, came into force replaciP.g an Ordinance promulgated earlier. The
Act was deemed to have come into force in the area where the disputed property is situated on the 11th November 1975. It seems the
Hotel was constructed and is situated on a piece of "vacant land" in
an "urban area" within the meaning of the Act. The Act was passed.
to prohibit unauthorised occupation of vacant lands in the urban
areas of the State of Maharashtra and to provide for summary eviction of persons from such lands. The Competent Authority under the
Act was empowered under section 4 to evict persons from unautho-
-
l
CHAN DU NAIK v. SITA RAM ( Untwalia, J.)
3 55
rised occupation of vacant lauds.
Section 8 of the Act which proA
vides for a bar of jurisdiction of courts reads as follows :-
"No Court shall have jurisdiction to entertain any suit,
prosecutiou or other proceedings in respect of the eviction
of any person from any vacant land under this Act or in respect of any order made or to be made or any action taken
or to be taken by the Competent Authority in exercise of the
B
powers conferred by or under this Act or to gfant any stay
or injunction in respect of such order or action. If any
such suit or other proceedings in respect of eviction of any
person from any vacant land is pending on the appointed
date in any Court, it shall abate; and it shall be lawiul for
the Competent Authority to evict such person
from unauthorised occupation of the vacant land under the proviC
sions of this Act and to remove and forfeit any property
from such land as provided in this Act."
The .Magistrate in his order dated the 21st January 1977 passed
in the proceeding aforementioned took the view that in view of section 8 of the Act, he ceased to have jurisdiction to proceed with the
case, in as much as he will have to order eviction of the appellants
D
from the disputed property if the case of the respondent was found to
be true. The appellant filed a revision in the Bombay High Court
from the said order of the Magistrate but failed. The High Court
agreed with the view taken by the Magistrate and dismissed the tevision. Hence this appeal.
In our opinion the Courts below have committed an error of law
E
in applying the bar of section 8 to the present proceeding. firstly in
the context of the Act the bar is not attracted to any suit or proceeding in respect of the eviction of any person from any
vacan~t land
started in relation to a dispute of possession between
two private
persons. The bar is attracted if the suit or proceeding concerns the
eviction of any persons from any vacant land by the
Competent
Authority. In other words, no suit or proceeding for eviction can be
F
entertained by any court if the Competent Authority is
entitled to
evict the person under sect.ion 4.
He will be entitled to evict any
person if he is in unauthorised occupation of vacant land, but not In
the case of dispute between two private persons, either of them claiming to be in authorised occupation.
For deciding such a dispute, the
Coll)petent Authority does not come into the picture.
Secondly,
in
substance and in effect a proceeding under section 145 of the Code
G
is not for the purpose of evicting any person from any land but is
prima'.ily concerned with th.e preventi.on of the breach of the peace by
<leclarmg the party found m possession to be entitled to remain in
possession until evicted therefrom in due course of law.
The proviso
to sub-section ( 4) of section 145 states :
"Provided that if it appears to the Magistrate that any
party has been ·forcibly and wrongfully dispossessed withi11
tw~ months next before the da.te on which the report of a
pohce officer or other information was received by the
10-Ill4SCl/77
'
H
l
---:-~-;-, '...,.....-:-· '"': I\
·w-
/ ·,;.
SUPREME COURT REPORTS
· [1978] 2 S.C.R.
............ :
'\
A
c
D
E
F
·G
•
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) ."
·
Sub-section 6(a) treats the party dispossessed within the period pro-.
vided for in the proviso to sub-section ( 4) as being in possession of
the disputed land on the date of the order. made under sub-section
(l). · Restoration. of possession to the party forcibly and wrongfully
dispossessed attracting the proviso to sub-section ( 4) is, in substance
and in effect, putting back tl1e party to possession for deciding his
possession on the date of the preliminary order made under sub~
section (1). Although the party who forcibly and wrongfully dispossessed the other party attracting the application of the proVIso to
sub-section ( 4) of section 145 of the Code has to be factually and
/physically evicted from the property, by a legal fiction it is only for
the purpose of treating him in possession on the date of the preliminary order. Hence the corirts below were wrong-in their view that
the proceeding abated and the Magistrate had no jurisdiction to diSpose it of in accordance with the Jaw in face of section 8 of the Act.
If the proceeding had so abated the attachment order passed by the
.Magistrate on the 29th July, 1975 could not survive and the Magistrate could not allow if to ·continue as he has done in this case.
We; therefore, hold that the proceeding in question in this ·case
did not abate and it has to be disposed of by the Magistrate in accordance with the provisions of Jaw contained in sections 145 and 146 of
the Code. For the guidance of the Magistrate, we think it expedient
in the interest of justice to indicate briefly as to how the Magistrate
is to proceed for disposin_g of the proceeding.
·
The Magistrate, in the first instance, will try to conclude tl1e proceeding in accordance with the various provisions of section 145 of
the Code. If he is able to declare the possession of either party on
consideration of the evidence adduced or to be adduced before him
. he would· do so. In that even the other party will be. forbidden from
creating any disturbance of the possession [including the deemed
possession. in case the application of the proviso to sub-section ( 4)
is.found necessary] of !he party declared in possession. The Magistrate, then, will have to withdraw the attachment in accordance with
the proviso to sub-section ( 1) of section 146, because, as · per his
order declaring a party in possession there would be no longer any
~likelihood of the breach of the peace with regard to the subject of dis-
·pute; 'The party not found in possession by the Magistrate will have
to seek the redress of his grievance, if any, elsewhere. If, however.
the Magistrate decides that none of the parties was in possession of
the disputed property on the date of the order made under sub-section
(1) of section 145 or if he is unable' to satisfy himself as to which of
them was then in possession of the subject of dispute he need not lift
the attachment until a compe_tent court had determined the rights of
the parties as provjded for in section 146 (1). In such a situation
•
r
·'
•
•
CHANDU NAIK v. SITA RAM (Untwalia, J.)
35 7
recourse, if necessary, may be taken to sub-section (2) of section 146
A
of the Code either by the Magistrate or a Civil Court, as the case may
be.
For the reasons stated above, we allow this appeal, set aside the
orders of the courts belq.v, send back the case to the Magistrate and
direct him to proposed to dispose it of in the light of this judgment
as expeditiously as possible, because considerable delay has already
B
occurred.
S.R.
Appeal allowed