Section 145 can’t be used to get land possession: HC

Saurabh Malik

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Tribune News Service

Chandigarh, November 30

In a significant judgment that will change the way provisions of the Code of Criminal Procedure are used to interfere with a party’s control over land in case of a dispute, the Punjab and Haryana High Court has ruled that proceedings under Section 145 cannot be used as a tool to get possession of the land on the basis of title.

Taking up the matter, Justice Anil Kshetarpal asserted: “In these proceedings, the question of title and consequent entitlement is not required to be adjudicated upon”. The ruling came on a petition filed by Kuldip Singh and other petitioners challenging, among other things, the initiation of proceedings under Section 145 by a Sub-Divisional Magistrate.

Section 145 of the CrPC lays down the procedure where dispute concerning land or water is likely to cause breach of peace. The proceedings by an executive magistrate are initiated on the basis of police report.

The ruling is significant as magistrates at times travel beyond their function of merely determining which party is in possession or was dispossessed two months prior to the initiation of proceedings under Section 145 before restoring the possession to the party forcibly dispossessed.

Justice Kshetarpal asserted the questions requiring determination in proceedings under Section 145 was which party was in possession or was dispossessed two months immediately before the initiation of proceedings.

The proceedings under Section 145 were sub-subservient to adjudication by a civil court and it had repeatedly been held that an executive magistrate normally should not initiate proceedings under Section 145 if civil suit was pending. He was, rather, required to relegate the parties to the civil court for filing an application in a pending suit.

Justice Kshetarpal also referred to a plethora of Supreme Court judgments, which made it clear that parallel proceedings under Section 145 should not continue when possession was being examined by the civil court and parties were in a position to approach it for adequate protection of the property during the pendency of the dispute.

Referring to the facts of the case in hand, Justice Kshetarpal asserted the proceedings under Section 145 were to determine who was in possession or was forcibly dispossessed within the specified timeframe. But material, even prima facie, was not produced to prove the fact in the present case.

“It would have been more appropriate for the executive magistrate to relegate the parties before the civil court where suit is already pending. The proceedings under Section 145 of the code cannot be used as a tool to get possession of the land on the basis of title,” Justice Kshetarpal added.