Allahabad High Court
Sachchida Nand Misra And Ors. vs State Of Uttar Pradesh And Ors. on 6 February, 1987
Equivalent citations: 1987CRILJ1366
ORDER B.L. Yadav, J.
1. This is a criminal revision filed under Section 397/401 of the Criminal P.C. 1973 (for short the Code).
2. The facts are few and simple and they are these. In respect of plot No. 103 (area 96 bighas and 15 biswas) situated in Village Phulsunga, Police Station Rudrapur, Tahsil Kiccha, District Nainital, proceedings under Section 145 of the Code were initiated at the instance of the opposite parties Nos. 2 to 4 (hereinafter referred to as the first party) against the applicants who were second party on the basis of an application in which allegations were made that there was an apprehension of breach of peace in respect of the possession of the land in dispute. One Ayodhya Prasad Tewari, the recorded tenure-holder, died in 1977 without leaving any heir. In fact the first party (opposite parties Nos. 2 to 4) alleged to be his heirs and the applicants "(the second party) were also alleged to be his heirs and both were recorded in the revenue papers. The applicants and the opposite parties Nos. 2 to 4 were cultivating the land jointly and the first party has harvested the rabi crops and the applicants at that time alleged that they were in exclusive possession and threatened to harvest the crops by force. After harvesting the crops the applicants threatened to attack the first party and tried to demolish their hut situated on the north side of the land. In fact the applicants started beating the first party on 10-6-80 and took away the hurt, (sic) a report was lodged and as season for kharif crop was coming closer and the applicants were trying to disturb the possession and that in this way there was an apprehension of the breach of peace, it was prayed that the proceedings under Section 145 of the Code may be initiated. )
3. The second party (the applicants) alleged to be in exclusive possession over the land in dispute. The paddy crops sown by the applicants are standing and some land is vacant which would be utilised for sowing other crops and the first party was bent upon creating disturbance of the peace. The Magistrate passed a preliminary order and also an order for attachment under Section 146 of the Code on 24-6-1980 and directed the parties to lead their evidence. Both the parties led evidence oral and documentary. By order dated 24-8-1981 the learned Magistrate held that the present applicants (the second party) were in actual possession over the land in dispute and directed the first party (opposite parties Nos. 2, 3 and 4) not to interfere with the possession of the present applicants. Against this order a revision was filed which has been allowed by the learned 1st Additional Sessions Judge, Nainital vide order dated 19-3-1982 on the ground that both the parties appeared to be co-tenants and possession of one co-tenant is possession for all. Hence the proceedings under Section 145 of the Code need not have been initiated. It is against this order that the present revision has been filed.
4. Sri B. N. Tewari, the learned Counsel for the appellants, urged that the provisions of Section 145 of the Code were couched in such a language that whenever there was any dispute likely to cause any breach of peace concerning any land or water and the Executive Magistrate was satisfied about the apprehension of the breach of peace, the proceedings have to be initiated irrespective of the fact whether it was a land of the co-tenants or co-sharers. It was further urged that the intention of the legislature has to be gathered from the language used and the Courts ought to give effect to the intention of the legislature. It was next urged that the applicants have taken a clear case that they were in exclusive possession as is clear from the case discussed by the trial court and further after examining the oral and documentary evidence it was held that only the applicants (the second party) were in exclusive possession over the land in dispute and these findings are findings of fact and could not have been interfered with in revision. As these findings were not set aside the revision could not have been allowed just on the technical ground that the land appeared to be co-tenancy of the applicants and the opposite parties Nos. 2, 3 and 4.
5. The learned Counsel for the opposite parties, on the other hand, urged that in the case of co-tenancy or joint possession it is well known that the parties are in joint possession over every inch of land, hence no effective remedy could be granted to either party by passing a preliminary or final order under Section 145 of the Code.
6. Having heard the learned Counsel for the parties I am of the opinion that the impugned order cannot be sustained. The first point for consideration is as to whether proceedings under Section 145 of the Code can be initiated in respect of the land held by co-tenants. A bare reading of Section 145 of the Code makes it evident that there is no condition imposed nor the provisions of Section 145 Cr. P.C. are curtailed by any proviso added that in respect of the land held by co-tenants proceedings under Section 145 of the Code could not be initiated. It is the settled principle of interpretation of a statute that where the language of the section is clear and explicit, the plain meaning must be followed Further the principle of interpretation is that the intention of the legislature or the Parliament has to be carried out and the same can be gathered from the language employed. In the instant case Section 145(1) of the Code enacts that 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. There was nothing to indicate, that in case, the land was held by co-tenant or was under possession of co-sharers the proceedings cannot be initiated. The object of the I legislature was to prevent the apprehension ; of the breach of peace. As Section 145 was placed under Chapter X of the Code which deals with 'Maintenance of Public Order and Tranquillity (sic). This obviously leads to the irresistible conclusion that the provisions under Chapter X (including Section 145 of the Code) are with a view to maintain public order and tranquillity. The paramount consideration accordingly was to maintain public order and tranquillity and it is just and incidental that an order has to be passed in favour of one party or the other. It cannot, therefore be said that in case of co-tenancy or possession of co-sharers the order under Section 145 of the Code could not be passed. If that view is adopted that would mean to add a proviso to the provisions of Section 145 of the Code which is not the function of the Court as it is well known that a Court has got jurisdiction to interpret and not to legislate.
7. It is better to quote an observation in Inland Revenue Commrs. v. Hinchy (1960) AC 748 at page 767 : (1960) 1 All ER 505 which was made as follows:
...What we must look for is the intention of Parliament, and I also find it difficult to believe that Parliament even really intended the consequences which flow from the appellants' contention. But we can only take the intention of Parliament from the words which they have used in the Act.
8. In Lalppa Lingappa v. Laxmi Vishnu Textile Mills Ltd. it was held that when the language is clear and explicit plain meaning must be followed and hardship and inconvenience are no grounds for deviating from this rule.
9. Lord Black Burns in River Wear Commrs. v. Adamson (1877) 2 AC 743 at page 764 observed as follows:
The office of the Judge is not to legislate but to declare the express intention of the Legislature even if that intention appears to 1 the court injudicious.
10. In the instant case as the language of Section 145 of the Code was quite plain and clear that whenever there was a dispute likely to cause a breach of peace concerning land or water the Executive Magistrate can pass a preliminary order followed by a final order or some other order provided under Section 45 of the Code but the language of Section 145 cannot be enlarged, so as to engraft a Proviso to the effect that in case of land held by co-tenants or co-sharers or where the parties are in the joint possession the proceedings under Section 145 of the Code cannot be initiated. If this view is adopted that would mean that the legislation becomes part of the interpretation by the court but this is not so. I am afraid the court can only interpret and not legislate. In this view of the matter the view taken by the learned Sessions Judge in revision cannot be sustained.
11. The matter can be viewed from another angle as well. Before the learned Magistrate the applicants who were second party, alleged in clear terms that they were in exclusive possession over the land in dispute and that the proceedings under Sections 33/39 of the U. P. Land Revenue Act have been decided in their favour and the names of the first party were ordered to be expunged. Further the learned Magistrate has considered the oral and documentary evidence on record of the case and come to the conclusion that since two months prior to the date of the preliminary order i.e. second party, the present applicants, were in possession and the first party (opposite parties Nos. 2, 3 and 4) were directed not to interfere with the possession of the second party (the present applicants). In this view of the matter as it was the case of the applicants that they were in exclusive possession over the land in dispute and not that the land was in the joint possession of the parties, the finding as to whether the first party was in exclusive possession or the second party was in exclusive possession cannot be interfered with in revision under Section 397/401 of the Code.
12. After perusing the order passed by the learned Magistrate and the other evidence on record I am satisfied that only the applicants were in possession since two months prior to the date of the preliminary order and the learned Magistrate has correctly recorded that finding. In this view of the matter it cannot be assumed that the opposite parties Nos. 2,3 and 4 were also in possession as co-tenants. Under the circumstances of the case the order passed by the trial court was eminently just and could not have been interfered with by the impugned order in revision just on the assumption that the parties were in possession as co-tenants. In case the opposite parties Nos. 2, 3 and 4 felt aggrieved they could initiate some proceedings by way of regular suit in a court of competent jurisdiction but in the proceedings under Section 145 of the Code they are not entitled to any relief.
13. In view of what has been stated hereinbefore, the revision succeeds and is allowed. The order dated 19-3-1982 passed by the 1st Additional Sessions Judge, Nainital in Criminal Revision No. 98 of 1981 is set aside and that of the learned Magistrate dated 24-8-1981 is maintained.