CHANDU NAIK & ORS. versus SITA RAM B. NAIK & ANR.

Citation: [1978] 2 S.C.R. 353 · Decided: 06-12-1977 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

\ ' 
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 jurisdic-
tion 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 
ab

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