Noberto Paulo Sebastiao Fernandes Thr His Poa vs Pankaj Vithal Tari Volvoikar And 3 Ors
- Court
- Bombay High Court
2026:BHC-GOA:1123
2026:BHC-GOA:1123
Shri Noberto Paulo Fernandes,
vs.
Shri Pankaj Tari Volvoikar and ors.
__________________________________________________
WPCR 39-2026
Vinita
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITION NO. 39 of 2026
Shri. Noberto Paulo Sebastiao Fernandes,
25 years of age, Son of late Shri. Jose
Piedade Fernandes, Resident of House
No.794, Vithaldas Waddo, Morjim,
Pernem, Goa, Through his constituted
Power of Attorney Holder, Mr. Neil
Fernandes, 35 Years of age, Constituted
vide the Power of Attorney dated
19/06/2019 bearing Registration
No.5640, Resident of House No.794,
Vithaldas Waddo, Morjim, Pernem, Goa …PETITIONER
~ VERSUS ~
1. Shri. Pankaj Vithal Tari Volvoikar,
Son of late Vithal Tari,
40 years of age,
2. Shri. Rohan Vital Tari Volvoikar,
Son of late Vithal Tari,39 years of age,
Both Residents of House No.492/2,
Amrai, Savoi - Verem, Ponda, Goa.
3. The Police Inspector,
Mandrem Police Station,
Mandrem, Pernem, Goa.
4. The Public Prosecutor,
High Court of Bombay at Goa,
Porvorim, Goa.
…RESPONDENTS
PPEARANCES
A :
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Shri Noberto Paulo Fernandes,
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WPCR 39-2026
for the Petitioner.
for the Respondent Nos.1
and 2.
for the Respondent Nos.3
and 4.
Mr. S. S. Kantak, Senior Advocate with
Mr .Chirag Angle, Ms. Neha Kholkar
Pai and Ms. Saicha Desai, Advocates.
Mr. Nigel Costa Frias with Mr Shane
Coutinho, Mr. Vishal Sawant and Ms.
M. Fernandes, Advocates.
Mr. Nikhil Vaze, Addl. Public
Prosecutor.
CORAM : AMIT S. JAMSANDEKAR, J.
Reserved on
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6 March 2026
:
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15 June 2026
Pronounced on
:
JUDGMENT
1. The Deputy Collector and Sub-Divisional Magistrate of Pernem,
Goa, ( the Learned Magistrate ) exercised his jurisdiction under
Section 164 of the Bhartiya Nagarik Suraksha Sanhita, 2023 ( BNSS )
and, inter alia , held that the Petitioner is entitled to get the possession
of House No.793 situated in survey No. 171 sub–division 6 of
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Village Morjim, Pernem, Goa. The Judgment and Order dated 7
April 2025 passed by the Learned Magistrate, came to be challenged
by Respondent Nos. 1 and 2 ( the Respondents ) by filing a Revision
Application under Section 438 of the BNSS before the Learned
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Shri Noberto Paulo Fernandes,
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Shri Pankaj Tari Volvoikar and ors.
__________________________________________________
WPCR 39-2026
Court of the District Judge–II and Additional Sessions Judge,
Mapusa, Goa ( the Learned Judge ) in Criminal Revision
Application No.47/2025. The Learned Judge exercised his
jurisdiction under Section 438 of the BNSS and called for the record
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of the proceedings, and thereafter, on 20 August 2025 ( the
Impugned Order ) quashed and set aside the Judgment and Order
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dated 7 April 2025 passed by the Learned Magistrate and
consequently directed The Police Inspector Morjim Police Station
to open the lock and hand over the possession of House No.793 to
the Respondents. By the present petition, the Petitioner has
challenged the impugned order of the Learned Judge.
2. Rule. The Rule is made returnable forthwith and heard finally by
consent. Mr. Costa Frias waives service on behalf of Respondent
Nos. 1 and 2. The service is also waived by Mr. Vaze on behalf of
Respondent Nos. 3 and 4.
st
3. On 21 January 2025, the Petitioner filed a complaint before the
Inspector, Mandrem Police Station, alleging that the Respondents
forcefully trespassed into the subject property and harassed the
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Petitioner and his employees. On 23 January 2025, the Petitioner
also made a complaint before the Learned Magistrate alleging that
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WPCR 39-2026
the Respondents committed acts of trespass and harassment. The
property, which was made the subject of the complaints by the
Petitioner, is identified and described in the complaints as
‘VITHALDAS’ bearing survey No. 171 sub-division 6 of Village
Morjim, Pernem ( the said property ).
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4. On 29 January 2025, the Sub Inspector of Mandrem Police Station
sent a report to the Learned Magistrate and requested that powers
under Section 164 of the BNSS be invoked.
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5. On 29 January 2025, the Learned Magistrate issued a Notice to the
Respondents under Section 164 of the BNSS. The Learned
Magistrate called upon the Respondents to remain present before
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him on 10 February 2025 and to submit written statements of their
respective claims in respect of the said property. After the notice,
the Respondents appeared before the Learned Magistrate. The
Petitioner as well as the Respondents filed their respective written
statements before the Learned Magistrate.
6. The rival claims made by the Petitioner and the Respondents in their
respective written statements are as follows:
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Shri Noberto Paulo Fernandes,
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WPCR 39-2026
i) The Petitioner has alleged that the Respondents have
disturbed the Petitioner’s settled possession of the said
property. The claim of the Respondents pertaining to
the Mundkarship of House No. 793 is false. The
Petitioner has claimed that the Petitioner is the absolute
owner of the said property, and therefore claims that he
exercises absolute proprietary and possessory rights in
respect of the said property and the structures owned
and possessed by the Petitioner on the said property.
The Petitioner has alleged that the grandmother of the
Respondents, Smt. Satyawati Tari had claimed
Mundkarship and had filed an application for
registration of Mundkarship on 04.09.1978 in respect of
another dwelling house in the property "UCHIT
VELECHE MAD" bearing Survey No 130/17 of
Village Morjim. That claim was accepted and granted by
the order dated 18.08.1983 in Case No
JM/MND/RGT/MOR. Therefore, the claim of the
Mundkarship in respect of the structure bearing house
No. 793 situated in Survey No. 171/6 of Village Morjim
was with an ulterior motive to grab the said property of
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WPCR 39-2026
the Petitioner. It is further complained that the
Respondents cannot claim benefit under the Goa
Daman and Diu Mundkars (Protection from Eviction)
Act, 1975( the Mundkar Act ) in respect of two separate
dwelling houses.
ii) The Petitioner has alleged that the Respondents' claim
to Mundkarship in respect of the structure bearing
house No. 793, situated in Survey No. 171/6 of Village
Morjim, has already been dismissed by the competent
authority. The appeal against that decision has also been
dismissed. There is an Appeal pending before the
Administrative Tribunal under Section 24 of the
Mundkar Act. It is alleged by the Petitioner that the
Respondents are permanent residents of House
No.429/2 of Savoi Verem, and it is evident from the
Electoral Roll of 2014 of the Assembly Constituency of
Priol, Goa. Therefore, it is alleged by the Petitioner that
the Respondents were never in possession of the said
property and/or the structure bearing House No. 793
standing on the said property. In this background, the
Petitioner has claimed that the Petitioner is in exclusive
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WPCR 39-2026
possession of the said property and the structures
standing on the said property.
iii) The allegations and claims made by the Petitioner are
denied by the Respondents. The Respondents have
alleged that House No. 793 on the said property was
constructed by his grandfather, late Savlaram Tari. The
construction of House No. 793 was with the consent of
the original landlord/Jose Piedade Fernandes, and since
then, the Respondents’ ancestors, and after their death,
the Respondents have been residing therein and are in
possession of the same. House No. 793 is also seen in
the Government survey plan. The Respondents claim
that after the death of his grandfather/Savlaram Tari,
the Mundkarial right devolved on the grandmother of
the Respondents and her son, Vithal Savlaram Tari. It is
claimed that the grandmother filed an application for
registration of Mundkarship in 1978. However, due to
her illiteracy, the survey number of the property was
incorrectly recorded as 130/17 instead of 171/6. The
landlord did not appear in the proceedings and the
grandmother of the Respondent was registered as a
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WPCR 39-2026
Mundkar in respect of House No. 793 situated in Survey
No. 130/17. The Respondents claimed that the mistake
in the application filed by the grandmother is apparent
because there is no house situated in Survey No. 130/17
of Village Morjim. Therefore, the House constructed by
the Respondent’s grandfather is House No. 793, which
is standing on the said property. In this background Smt.
Satyawati Tari filed an application for a declaration of
Mundkarship in respect of House No.793 standing on
the said property, which was dismissed by the Court of
Mamlatdar, and the appeal filed by her was also
dismissed by the Deputy Collector. The proceedings
against the dismissal of the Appeal are pending before
the Administrative Tribunal.
iv) The Respondents have alleged that the Petitioner, by
using his financial and muscle power, has always
attempted to dispossess the Respondents of House No.
793 standing on the said property. When such an
attempt was made by the Petitioner in the year 2015, an
FIR No. 177/15 was lodged against the Petitioner and
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WPCR 39-2026
the possession of the Respondents was maintained. This
incident was widely reported in the local newspapers. In
support of the claim, the Respondents have filed
documentary evidence to establish their possession of
House No. 793 standing on the said property.
7. With these facts, the proceedings were heard by the Learned
Magistrate under Section 164 of the BNSS, and he was pleased
to hold that the Petitioner was in the actual position of the
subject property and consequently passed directions by his
th
order dated 7 April 2025.
8. By the Impugned Order, the Learned Judge was pleased to
inter alia , on the
allow the Respondents’ Revision Application,
grounds:
i) that the Learned Magistrate proceeded without
jurisdiction. The Learned Judge has followed the
decisions of the Hon’ble Supreme Court on the
interpretation of Section 164 of the BNSS and
therefore has not followed the decision of the
Division Bench of this Court in V. K. Rao. v.
Chandappa Appa Devadiga, [1974 SCC Online
Bom. 147]
.
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Shri Noberto Paulo Fernandes,
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Shri Pankaj Tari Volvoikar and ors.
__________________________________________________
WPCR 39-2026
ii) that the Learned Magistrate has wrongly proceeded on
the basis of the title of the Petitioner to the property
when the scope of Section 164 is merely to decide the
actual possession of the property as on the date of
passing the preliminary order. The Petitioner failed to
establish that the Petitioner was in the actual
possession of the property and the record establishes
that the Respondents were in the actual possession of
the property etc.
iii) the Learned Magistrate ignored the evidence of the
Respondents, which establishes that the Respondents
were in actual possession of the property.
9. In the background of the above-mentioned facts, Mr. Kantak,
the Learned Senior Counsel, submitted that the impugned
order ought to be set aside on the following grounds:
i) Impugned Order suffers from patent perversity. It
ignores the settled law laid down by the Division
Bench of this Court in V.K. Rao v. Chandappa
Appa Devadiga, [1974 SCC Online Bom 147]
. A
mere non-stating of grounds by the Learned
Magistrate in the notice dated 29/01/2025 issued
under Section 164 of the BNSS would not, by itself,
vitiate the final order passed therein. Not a single
Judgment has been produced on record by the
Respondents to indicate any contrary view taken that
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WPCR 39-2026
the non-stating of the grounds in the preliminary
notice by itself vitiates the entire proceedings.
ii) The impugned order has erroneously recorded that
the Judgments cited by the Respondents have laid
down the law that the preliminary order under Section
145 (1) of the Criminal Procedure Code ( the Code )
mandatorily requires grounds and that non-stating of
grounds vitiates the entire proceedings and the final
order.
iii) The Petitioner submits that the judgment of
Vishwanath Kashinath Virkar and others v.
Nitinchand Keshavji Gala and others, [1995 SCC
OnLine Bom 142] and Laxman Bhikaji Pawar v.
Bahimkhan Balekhan Dalwai, [1976 SCC Online
Bom 95] (cited by the Respondents) although dealing
with the specific proposition of law whether the non-
stating of grounds in a preliminary order would vitiate
the final order and the proceedings therein, the
Learned Judge has lost sight of the fact that the same
were passed by a Single Bench of this Court. The
Petitioner submits that in such circumstances, the
judgments which have ignored the settled law laid
down by the Division Bench in V.K. Rao (supra)
would be per incuriam . In any event of the matter, the
Judgment of V.K. Rao (supra), being passed by a
Division Bench, would prevail over that of the Single
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WPCR 39-2026
Bench. All other judgments cited by the Respondents
per incuriam
of the Single Bench would thus be in view
of the law being settled by the Division Bench in V.K.
Rao (supra).
iv) The notice issued by the Learned Magistrate under
Section 164 of the BNSS fulfils the requirements of
Section 164 (1) of the BNSS. Therefore, the notice
should be construed as a preliminary order under
Section 164 of the BNSS.
v) Therefore, it is submitted that in terms of the ratio of
V.K. Rao (supra) it is trite law that the mere fact that a
cyclostyle form was issued by the Magistrate in
drawing a preliminary order will not by itself show
that the Learned Magistrate had not applied his mind
or has acted mechanically in passing a preliminary
order.
vi) The Learned Judge appears to have lost sight of the
distinction between ratio decidendi and obiter dicta and
further that only the ratio decidendi in a judgment
operates as a binding precedent.
vii)
The mandate of Section 511 of the BNSS, 2023
clearly stipulates that a ‘mere irregularity’, if at all any,
in passing the impugned judgment would by itself not
be sufficient grounds to reverse the order, unless it is
shown that there has been a failure of justice.
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viii)
Subject structure (House No.793) was duly identified
before the Learned Magistrate, and therefore, the
Respondents were well aware of the property in
dispute.
ix) Evidence contemplated under Section 164 (4) of the
BNSS, 2023 is of a summary nature and the parties
themselves had chosen not to lead any evidence
before the learned Magistrate.
x) The Learned Judge has committed a manifest and
patent error in law in re-appreciating the
documents/records in exercise of revisional powers
under Section 438 of the BNSS. The Learned Judge
appears to have lost sight of the ratio laid down in K.
Ravi Vs. State of Tamil Nadu, [2024 SCC Online
SC 2283] .
xi)
In support of these submissions, Mr Kantak has cited
the following Judgements: -
Dhaveethu Vs. The District Collector, Sivagangai
District, Sivagangai & Ors. [2016 SCC OnLine
Mad 17222], V.K. Rao Vs. Chandappa Appa
Devadiga , [1974 SCC OnLine Bom 147], Ajaib
Singh Vs Amar Singh , The Indian Law Reports
(Punjab Series) Vol. XVII-(1), K. Ravi Vs. State of
Tamil Nadu , [2024 SCC OnLine SC 2283] , Romell
Housing LLP & Anr Vs. Sameer Salim Shaikh &
Ors [2025 SCC OnLine Bom 3184], Asset
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Shri Noberto Paulo Fernandes,
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WPCR 39-2026
Reconstruction Company (India) Ltd. Vs.
Inspector of Police & Ors
[(2022) 8 SCC 238],
Career Institute Educational Society Vs. Om
Shree Thakurji Education Society [2023 LiveLaw
(SC) 380], State of U.P & Anr Vs. Synthetics &
Chemicals Ltd. & Anr [(1991) 4 SCC 139],
Panjumal Hassomal Advani Vs. Harpal Singh
Abnashi [1974 SCC OnLine Bom 84], Hyder
Consulting (UK) Ltd Vs. Governor, State of
Orissa , [(2015) 2 SCC 189] , Arnit Das Vs. State of
Bihar , [(2000) 5 SCC 488], Regional Manager Vs.
Pawan K. Dube, [(1976) 3 SCC 334], Pradeep
Wodeyar Vs The State of Karnataka , [ Criminal
Appeal No. 1288 of 2021, SC].
10. On the other hand, Mr. Costa Frias, the Learned Counsel,
submitted that the jurisdiction exercised by the Learned Judge
is fully justified under Section 438 of the BNSS. The order
passed by the Learned Magistrate was arbitrary, perverse and
without jurisdiction. In view of the fact that no preliminary
order was passed by the Learned Magistrate under Section 164
of the BNSS was by itself a ground to set aside the order of
the Learned Magistrate. The Learned Judge has rightly relied
upon the decisions of the Hon’ble Supreme Court and held
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Shri Noberto Paulo Fernandes,
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WPCR 39-2026
that the final order under Section 164 of the BNSS was passed
without jurisdiction. It is the submission of the Respondents
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that the ‘Notice’ issued by the Learned Magistrate on 29
January 2025 cannot be construed as a ‘preliminary order’
under Section 164 of the BNSS. The requirement of a
preliminary order is the objective satisfaction with reasons.
Therefore, it is submitted that the failure to pass a preliminary
order under Section 164 BNSS vitiates the entire proceedings
and the Learned Judge has taken the right approach, relying on
the judgments of the Hon’ble Supreme Court. He further
submitted that on the face of the order passed by the Learned
Magistrate under Section 164 of the BNSS, it is clear that the
only consideration given by the Learned Magistrate was that the
Petitioner is the owner of the subject property. That ought not
to have been the factor for deciding the proceedings under
Section 164 of the BNSS. There were no factual findings about
the actual possession of the property in the order passed by the
Magistrate. In fact, the Magistrate did not conduct an inquiry
about the issue of actual possession. It is submitted by Mr.
Costa Frias that the judgment of the Division Bench of this
Court in V. K. Rao (Supra) is not a good law in view of the
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subsequent judgment of the Supreme Court and the plain
language of the provisions of Section 164 of the BNSS. Once
the proceedings lack jurisdiction, the entire proceedings stand
vitiated. He further submitted that V. K. Rao (Supra) cannot
be binding on this Court, and what is binding on this Court is
the decision of the Hon’ble Supreme Court. Further, it is
submitted that provisions of Section 511 of the BNSS would
not be applicable because non issuance of a preliminary order
is not merely irregularity. In any case, it is submitted on behalf
of the Respondents that the Learned Judge has rightly decided
the issue of the actual possession of the property as on the
date of issuance of the notice by the Learned Magistrate. He
submitted that this is the exercise which the Learned Magistrate
ought to have done; however, he failed to do so. The finding
of the Learned Magistrate that the parties chose not to lead
evidence is contrary to the record and factually wrong.
Therefore, the Learned Judge, after calling for and verifying the
record, has rightly held that it is wrong. The Learned Judge was
justified in calling for and looking into the record of the matter
under Section 438 of the BNSS and has rightly held that the
Learned Magistrate has not considered the evidence produced
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by the Respondents on record to clearly establish that the
Respondents were in the actual possession of the property.
Therefore, it is submitted that the Impugned Order cannot be
interfered with on any grounds as sought to be argued on
behalf of the Petitioner.
11. In support of these submissions Mr. Costa Frias has cited the
following Judgements:
R. H. Bhutani Vs. Miss Mani J. Desai & Ors [1968 SCC
OnLine SC 5], Laxman Bhikaji Pawar & Ors Vs. Bhimkhan
Balekhan Dalwai & Ors [1976 SCC OnLine Bom 95],
Mathuralal Vs. Bhanwarlal & Anr [(1979) 4 SCC 665],
Rajpati Vs. Bachan & Anr [(1980) 4 SCC 116], Vishwanath
Kashinath Virkar & Ors Vs. Nitinchand Keshavji Gala &
Ors [1995 SCC OnLine Bom 142], Surya Dev Rai Vs. Ram
Chander Rai & Ors [2003 6 SCC 675], Shanti Kumar Panda
Vs. Shakuntala Devi [(2004) 1 SCC 438], Kalyani Packaging
Industry Vs. UOI & Anr Shalini Shyam
[(2004) 6 SCC 719],
Shetty & Anr Vs. Rajendra Shankar Patil [(2010) 8 SCC
329], Amrishchandra Agarwal Vs. State of Maharashtra &
Anr (Criminal Application No.936 of 2023), Ambrosia
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Fernandes Vs. State of Goa & Ors (Criminal Writ Petition
No.44 of 2025).
12. I have heard Mr. Kantak and Mr. Costa Frias at length and have
perused the record and have considered the written
submissions filed by the Petitioner and the Respondents. To
decide the rival contentions, I have framed the following
questions for consideration.
i) Whether the absence of a preliminary order under
Section 164 (1) of the BNSS would affect the very
jurisdiction of the Executive Magistrate to exercise
powers under Section 164 and therefore would
vitiate the entire proceedings initiated and concluded
under Section 164 of the BNSS?
ii)
Whether a mere ‘notice’ sent by the Executive
Magistrate under Section 164 (1) stating merely that
‘ I am satisfied that there exists a dispute likely to cause breach
of public peace and tranquility and disturbance of communal
harmony in the locality concerning the property’ , would be a
‘preliminary order’ under the provisions of Section
164 (1) of the BNSS?
iii) Whether the non issuance of a preliminary order is
a mere irregularity and/or error and therefore by
virtue of the provisions of Section 511 of the BNSS
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the final order passed by the Learned Magistrate
cannot be reversed or altered by a Court?
iv) Whether in the facts and circumstances of this case,
the Learned Judge was justified in exercising
jurisdiction under Section 438 of the BNSS?
13. Chapter IX of the BNSS contains provisions in respect of the
Maintenance of public order and tranquility. The Chapter is
divided into four parts. Part A.- has provisions to deal with the
unlawful assemblies. Part B.- has provisions to deal with public
nuisances. Part C.- has provisions to deal with urgent cases of
nuisance or apprehended danger and Part D.- contains
provisions to deal with the disputes as to immovable property.
14. Section 164 is in Part D of Chapter XI of the BNSS (the
corresponding Section 145 of the Code), which reads as
follows:
164. Procedure where dispute concerning land
(1)
or water is likely to cause breach of peace—
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 an advocate 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.
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(2) For the purposes of this section, the expression “land or
water” includes buildings, markets, fisheries, crops or other
produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner
provided by this Sanhita for the service of summons upon such
person or persons as the Magistrate may direct, and at least
one copy shall be published by being affixed to some
conspicuous place at or near the subject of dispute.
(4) The Magistrate shall, without reference to the merits or the
claims of any of the parties to a right to possess the subject of
dispute, peruse the statements so put in, hear the parties,
receive all such evidence as may be produced by them, take such
further evidence, if any, as he thinks necessary, and, if possible,
decide whether any and which of the parties was, at the date
of the order made by him under sub-section (1),
in possession of the subject of dispute :
Provided that if it appears to the Magistrate that any party
has been forcibly and wrongfully dispossessed within two
months next before the date on which the report of a police
officer or other information was received by the 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).
(5) Nothing in this section shall preclude any party so required
to attend, or any other person interested, from showing that no
such dispute as aforesaid exists or has existed; and in such
case the Magistrate shall cancel his said order,
and all further proceedings thereon shall be
stayed, but, subject to such cancellation, the
order of the Magistrate under sub-section (1)
shall be final.
(6)(a) If the Magistrate decides that one of the parties was, or
should under the proviso to sub-section (4) be treated as being,
in such possession of the said subject of dispute, he shall issue
an order declaring such party to be entitled to possession thereof
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until evicted therefrom in due course of law, and forbidding all
disturbance of such possession until such eviction; and when he
proceeds under the proviso to sub-section (4), may restore to
possession the party forcibly and wrongfully dispossessed;
(b) the order made under this sub-section shall be served and
published in the manner laid down in sub-section (3).
(7) When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the deceased
party to be made a party to the proceeding and shall thereupon
continue the inquiry, and if any question arises as to who the
legal representative of a deceased party for the purposes of such
proceeding is, all persons claiming to be representatives of the
deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other
produce of the property, the subject of dispute in a proceeding
under this section pending before him, is subject to speedy and
natural decay, he may make an order for the proper custody or
sale of such property, and, upon the completion of the inquiry,
shall make such order for the disposal of such property, or the
sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the
proceedings under this section, on the application of either
party, issue a summons to any witness directing him to attend
or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in
derogation of powers of the Magistrate to proceed under Section
126.
(emphasis supplied)
15. Section 164 specifically provides a mechanism by which the
proceedings relating to a dispute likely to cause a breach of the
peace concerning any land, water or boundaries thereof are
regulated. The provisions of Section 145 of the Code (164 of
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the BNSS) are interpreted by the Hon’ble Supreme Court, and
the object of the Section and the proceeding under Section, its
scope and the manner in which the proceedings are regulated
are explained by the Hon’ble Supreme Court in R.H. Bhutani
Vs Miss Mani J. Desai & Ors., [1968 SCC OnLine SC 5]
has interpreted the provisions of Section 145 of the Code and
held that:
8. The object of Section 145, no doubt, is to
prevent breach of peace and for that end to
provide a speedy remedy by bringing the
parties before the court and ascertaining
who of them was in actual possession and to
maintain status quo until their rights are
determined a competent court . The section
requires that the Magistrate must be satisfied before
initiating proceedings that a dispute, regarding an
immoveable property exists and that such dispute is likely
to cause breach of peace. But once he is satisfied
of these two conditions, the section requires
him to pass a preliminary order under sub-
section (1) and thereafter to make an enquiry
under sub-section (4) and pass a final order
under sub-section (6). It is not necessary
that at the time of passing the final order the
apprehension of breach of peace should
continue or exist. The enquiry under Section 145 is
limited to the question as to who was in
actual possession on the date of the
preliminary order irrespective of the rights
of the parties. Under the second proviso, the party
who is found to have been forcibly and wrongfully
dispossessed within two months next preceding the date
of the preliminary order may for the purpose of the
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enquiry be deemed to have been in possession on the date
of that order. The opposite party may of course prove
that dispossession took place more than two months next
preceding the date of that order and in that case the
Magistrate would have to cancel his preliminary order.
On the other hand, if he is satisfied that dispossession
was both forcible and wrongful and took place within the
prescribed period, the party dispossessed would be deemed
to be in actual possession on the date of the preliminary
order and the Magistrate would then proceed to make his
final order directing the dispossessor to restore possession
and prohibit him from interfering with that possession
until the applicant is evicted in due course of law. This
is broadly the scheme of Section 145.
9.The satisfaction under sub-section (1) is of the
Magistrate. The question whether on the materials before
him, he should initiate proceedings or not is, therefore, in
his discretion which, no doubt, has to be exercised in
accordance with the well recognised rules of law in that
behalf. No hard and fast rule can, therefore,
be laid down as to the sufficiency of material
for his satisfaction . The language of the sub-section
is clear and unambiguous that he can arrive at his
satisfaction both from the police report or “from other
information” which must include an application by the
party dispossessed. The High Court, in the
exercise of its revisional jurisdiction, would
not go into the question of sufficiency of
material which has satisfied the Magistrate.
10. The question is whether the preliminary order passed
by the Magistrate was in breach of Section 145(1), that
is, in the absence of either of the two conditions precedent.
One of the grounds on which the High Court interfered
was that the Magistrate failed to record in his preliminary
order the reasons for his satisfaction. The section, no
doubt, requires him to record reasons. The
Magistrate has expressed his satisfaction on the basis
of the facts set out in the application before
him and after he had examined the appellant
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on oath. That means that those facts were prima facie
.
sufficient and were the reasons leading to his satisfaction
(emphasis supplied)
16. Thus, the Hon’ble Supreme Court clearly held that the
Magistrate is required to pass a preliminary order recording his
satisfaction about the existence of a dispute. Thereafter, in
Mathuralal Vs Bhanwarlal & Ors., [(1979) 4 SCC 665] ,
Section 145 (1) has been further interpreted by the Hon’ble
Supreme Court after comparing the provisions of the Code of
1898 before it was amended in 1955, the Code of 1898 after
the amendment of 1955 and the Code of 1973. The Supreme
Court has held that:
4. Quite obviously, Sections 145 and 146
of the Criminal Procedure Code
together constitute a scheme for the
resolution of a situation where there is
a likelihood of a breach of the peace
because of a dispute concerning any
land or water or their boundaries. If
Section 146 is torn out of its setting and read
independently of Section 145, it is capable of being
construed to mean that once an attachment is
effected in any of the three situations mentioned
therein, the dispute can only be resolved by a
competent court and not by the Magistrate effecting
the attachment. But Section 146 cannot be
so separated from Section 145. It can
only be read in the context of Section
145. Contextual construction must
surely prevail over isolationist
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construction. Otherwise, it may
mislead. That is one of the first principles of
construction. Let us therefore look at Section 145
and consider Section 146 in that context. Section
145 contemplates, first, the satisfaction
of the Magistrate that a dispute likely to
cause a breach of the peace exists
concerning any land or water or their
boundaries, and, next, the issuance of
an order, known to lawyers practising in
the criminal courts as a preliminary
order, stating the grounds of his
satisfaction and requiring the parties
concerned to attend his Court and to
put in written statements of their
respective claims as regards the fact of
actual possession of the subject of
dispute. A preliminary order is
considered so basic to a proceeding
under Section 145 that a failure to draw
up a preliminary order has been held by
several High Courts to vitiate all the
subsequent proceedings. It is by
making a preliminary order that the
Magistrate assumes jurisdiction to
proceed under Sections 145 and 146. In
fact, the first of the situations in which an
attachment may be effected under Section 146 of
the 1973 Code has to be "at any time after making
the order under sub-section (1) of Section 145"
while the other two situations have, necessarily, to be
at the final stage of the proceeding initiated by the
preliminary order. Now, the preliminary
order is required to enjoin the parties
not only to appear before the Magistrate
on a specified date but also to put in
their written statements. Sub-section (3)
of Section 145 prescribes the mode of
service of the preliminary order on the
parties. Sub-section (4) casts a duty on the
Magistrate to peruse the written statements of the
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parties, to receive the evidence adduced by them, to
take further evidence if necessary and, if possible,
to decide which of the parties was in possession on
the date of the preliminary order. If the Magistrate
decides that one of the parties was in possession he
is to make a final order in the manner provided by
sub-section (6). Provision for the two situations
where the Magistrate is unable to decide which of
the parties was in possession or where he is of the
view that neither of them was in possession is made
in Section 146 under which he may attach the
subject of dispute until the determination of the
rights of parties by a competent court. The
scheme of Sections 145 and 146 is that
the Magistrate, on being satisfied about
the existence of a dispute likely to cause
a breach of the peace, issues a
preliminary order stating the grounds
of his satisfaction and calling upon the
parties to appear before him and submit
their written statements. Then he proceeds to
peruse the statements, to receive and to take evidence
and to decide which of the parties was in possession
on the date of the preliminary order. On the other
hand if he is unable to decide who was in such
possession or if he is of the view that none of the
parties was in such possession he may say so. If he
decides that one of the parties was in possession, he
declares the possession of such party. In the other
two situations he attaches the property. Thus a
proceeding begun with a preliminary
order must be followed up by an enquiry
and end with the Magistrate deciding in
one of three ways and making
consequential orders. There is no half
way house, there is no question of
stopping in the middle and leaving the
parties to go to the civil court. Proceeding
may however be stopped at any time if one or other
of the parties satisfies the Magistrate that there has
never been or there is no longer any dispute likely to
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cause a breach of the peace. If there is no dispute
likely to cause a breach of the peace, the foundation
for the jurisdiction of the Magistrate disappears.
The Magistrate then cancels the preliminary order.
This is provided by Section 145 sub-section
(5). Except for the reason that there is no dispute
likely to cause a breach of the peace and as
provided by Section 145(5), a proceeding
initiated by a preliminary order under Section
145(1) must run its full course. Now, in a case
of emergency, a Magistrate may attach the
property, at any time after making the
preliminary order. This is the first of the
situations provided in Section 146(1) in which
an attachment may be effected. There is no
express stipulation in. Section 146 that the
jurisdiction of the Magistrate ends with the
attachment. Nor is it implied. Far from it. The
obligation to proceed with the enquiry as
prescribed by Section 145 sub-section (4) is
against any such implication. Suppose a
Magistrate draws up a preliminary order under
Section 145(1) and immediately follows it up
with an attachment under Section 146(1), the
whole exercise of stating the grounds of his
satisfaction and calling upon the parties to appear
before him and submit their written statements
becomes futile if he is to have no further
jurisdiction in the matter. And yet he cannot
make an order of attachment under Section
146(1) on the ground of emergency without first
making a preliminary order in the manner
prescribed by Section 145(1). There is no reason
why we should adopt a construction which will
lead to such inevitable contradictions. We
mentioned a little earlier that the only provision
for stopping the proceeding and cancelling the
preliminary order is to be found in Section
145(5) and it can only be on the ground that
there is no longer any dispute likely to cause a
breach of the peace. An emergency is the basis
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of attachment under the first limb of Section
146(1) and if there is an emergency, none can
say that there is no dispute likely to cause a
breach of the peace .
(emphasis supplied)
17.
Further, in 1980, the Hon’ble Supreme Court once again considered
the provisions of Section 145 of the Code in the case of Rajpati
Vs Bachan &Ors. [(1980) 4 SCC 116] . In that case, the Magistrate
proceeded with the inquiry under Section 145 of the Code after
passing a preliminary order recording reasons for his satisfaction.
However, it was alleged that there was no clear finding by the
Magistrate in the final order passed under Section 145 of the Code.
The Hon’ble Supreme Court relied on the decision in R. H.
Bhutani
(supra) and held that a finding regarding the existence of
a breach of peace is not necessary at the stage when the final order
is passed, nor is there any provision in the Code requiring such a
finding in the final order. This was held after observing that once a
preliminary order is drawn up by the Magistrate setting out reasons
for holding that a breach of the peace exists, it is not necessary that
such breach of peace should continue at every stage of the
proceedings. The Supreme Court further held that it is well settled
that under Section 145 of the Code, it is for the Magistrate to be
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satisfied regarding the existence of a breach of the peace, and once
such satisfaction is recorded in a preliminary order, the High Court,
in revision, cannot go into the sufficiency or otherwise of the
material on the basis of which such satisfaction is founded. This was
held by the Supreme Court on the basis of the ratio in the case of
R. H. Bhutani (supra).
18. Therefore, it is clear that only by making a preliminary order
recording his satisfaction in writing, the Magistrate assumes
jurisdiction to proceed under Sections 145 and 146 of the
Code. The language of Section 164 of the BNSS is identical,
and therefore, the ratio of the judgments of the Hon’ble
Supreme Court will also apply to the provisions of Section 164
of the BNSS.
Ajaib Singh Vs Amar
19. To overcome this, Mr. Kantak cited
Singh , reported in The Indian Law Reports (Punjab Series)
Vol. XVII-(1). In this judgment the Division Bench of Punjab
& Haryana High Court has taken a view in the year 1963 that
once the Magistrate is satisfied on the basis of the information
received by him, he seized of jurisdiction, and the further
question as to whether he passes a formal order under sub
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section (1) of Section 145 of the Code or gets the same
published as required by sub section (3) of the Section are
matters relating to the mode of procedure. The Magistrate,
having become seized of the jurisdiction, cannot be divested
of the same because in the exercise of that jurisdiction, he does
not pass an order in conformity with law. His jurisdiction does
not depend upon the correctness or otherwise of the order
made by him. A court has jurisdiction to pass a right order as
well as a wrong order, and defects in an order would only go to
show that the order is erroneous and not in conformity with
the law, but it would not make the order as one without
jurisdiction. It is further held that there is an essential
difference between lack of jurisdiction and irregular exercise of
jurisdiction and the two cannot be equated with each other or
treated on the same footing. Procedural mistakes do not affect
the jurisdiction of the Court, unless the matter is “something
so vital as to cut at the root of jurisdiction or so abhorrent to
what one might term natural Justice”. This judgment cannot be
of any assistance to the Petitioner because the ratio of this
judgment interpreting the provisions of Section 145 of the
Code is impliedly overruled by subsequent three judgments of
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the Hon’ble Supreme Court in R. H. Bhutani , Mathuralal
and Rajpati (supra).
20. Mr. Kantak further supported his submissions by citing a Division
Bench Judgement of this Court in V. K. Rao Vs. Chandappa
Appa Devadiga [1974 SCC On Line Bom 147] V. K. Rao
, . In the
Division Bench, after referring to various judgments, held that the
requirement of Section 145 of the Code is directory and not
mandatory. In the facts of that case (as noted in paragraph 3 of the
judgment), there was, in fact, a preliminary order drawn by the
Magistrate. However, it was argued that the preliminary order is a
cyclostyled order and therefore does not satisfy the requirements of
Section 145 (1) of the Code. With that factual background, the
Division Bench has taken a view that in the absence of the
preliminary order, the proceedings shall not be vitiated. The relevant
findings of the Division Bench are as follows:
13. The mere use of word “shall” does not make
the provisions mandatory. In fact, there are a
number of provisions in the Code of Criminal
Procedure where word “shall” is used and yet
those provisions are directory and not
mandatory. In my view, the question whether
this provision is mandatory or directory does
not depend upon the word “shall” but upon the
purpose and the object for which this provision
has been made. In these proceedings the Magistrate has
to pass an order on his subjective satisfaction as to the
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existence of a dispute regarding immovable property which is
likely to cause a breach of the peace. It is for the purpose of
indicating that the Magistrate had material before him and
that he applied his mind to the facts of the case that the
provision for stating of grounds seems to have been made.
The stating of the grounds by the Magistrate in
the preliminary order is also for the purpose of
indicating to the parties against whom the order
has been drawn that the Magistrate has been
satisfied about the existence of the dispute. It is
not to the grounds stated by the Magistrate to
which the parties are called upon to reply or
show cause. The parties are called upon by the Magistrate
“to put in written Statements of their respective claims as
respect the fact of actual possession of the subject of
dispute.” It may be that in a given case the Magistrate may
act on an application filed by a party but in most of the cases,
he acts on the basis of a report filed by the police. He,
therefore, calls upon all the parties who claim to be in
possession to file their written-statements. These written-
statements are not in reply to the grounds stated by the
Magistrate nor are they in reply to the claims made by one of
the parties before the Magistrate but they are claims of each
of the parties showing how he was in possession on the date
of the dispute. What the Magistrate does is to call upon the
parties to file their claims regarding actual possession.
Therefore, giving of the grounds in the order
itself has practically no impact on the
proceedings that follow. It is true that under
sub-s. (5) of s. 145 of the Code of Criminal
Procedure any party required to attend or any
other person interested can show that no such
dispute as aforesaid exists or existed and in that
case the Magistrate has to cancel the said order,
but this provision also does not support the
contention that the grounds are absolutely
necessary ingredients of the preliminary order .
The party or interested person can show that there was no
dispute even if the grounds are not mentioned in the
preliminary order. It is also true that in s. 147 of the Code
of Criminal Procedure the words used are:
“Whenever any District Magistrate, … is satisfied, … he
may make an order in writing stating the grounds of his being
so satisfied…”
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14.It was argued that in s. 145 of the Code of Criminal
Procedure the words used are “Magistrate shall pass such
order” and it showed that the provisions in s. 145 regarding
the stating of the grounds are mandatory and those in s. 147
are directory. It is not possible to accept this
contention because the words used in s. 145 of
the Code of Criminal Procedure are “the
Magistrate shall make the order.” It does not
further say that the Magistrate shall state the
grounds. If at all the discretion is granted to the
Magistrate, in s. 147 the discretion is not
regarding the stating of the grounds but that
discretion has been granted in the matter of
drawing the order. I am, therefore, of the
opinion that the use of the word “shall” in s. 145
and “may” in s. 147 are of very little assistance
in construing whether the provisions regarding
the stating of the grounds are mandatory or
directory. Sub-section (4) of s. 145 of the Code
of Criminal Procedure shows what matters the
Magistrate has to take into consideration while
passing the final order. I have already stated that the
parties have to make a statement regarding actual possession
and the Magistrate has also to decide who was in actual
possession on the basis of the documents and the affidavits
that are filed by the parties. This enquiry, therefore, has
practically no relevance to the grounds which the Magistrate
has to state in his preliminary order. The enquiry has to be
concluded as far as may be practical within a period of two
months. I have already stated that these are summary
proceedings and the case has to be disposed of by the
Magistrate on the basis of the documents and affidavits filed
by the parties. The procedure regarding the matter of enquiry
has been amended and provision for recording of the evidence
has been deleted and the parties have been given right to adduce
evidence by affidavits in order to shorten the procedure. The
emphasis is on the speedy disposal of such disputes. All this
clearly leads me to conclude that the provisions
regarding the stating of the grounds are
directory and not mandatory .
15. Even if the provisions regarding stating of
the grounds are mandatory, non-compliance by
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the Magistrate of those provisions does not in
any way vitiate the final order in absence of
proof of prejudice suffered by the parties
against whom the order is made. I have already
stated that the parties are required to file statements not in
reply to the grounds stated by the Magistrate in the
preliminary order but they have to file statements and
affidavits in support of their claim to the actual possession.
Therefore, there is very little scope of prejudice in subsequent
proceeding even if the Magistrate does not state the grounds in
the preliminary order. It is well-settled that the non-
compliance even of mandatory provisions by
the trial Judge does not in absence of prejudice
vitiate the final order . (See W. Slaney v. State of
8
M.P. )
(emphasis supplied)
21. The Division Bench in V. K. Rao has referred the judgment of
the Supreme Court in R. H. Bhutani (supra) and interpreted
it to mean that:
24. It is true that the Supreme Court has
observed that the section requires that the
Magistrate has to state in writing the grounds
for his satisfaction. If the Supreme Court has, in
fact, held as is urged by the petitioner that the
provision is mandatory, then the order of the
Magistrate would be bad because the
Magistrate had not stated the grounds in
writing. In my opinion, the Supreme Court has
held that there should be something in the order
to indicate that the Magistrate had grounds to
pass the order. If that material was before him
when he passed the order then the grounds may
not necessarily be stated in writing by the
Magistrate as those facts were the grounds
themselves. The fact that the Supreme Court
has observed that the application along with the
examination of the applicant were the reasons
(grounds), clearly indicates that the Supreme
Court has held that the provision regarding
stating of the grounds in writing in the order
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was not mandatory. In my opinion, what the
Supreme Court seems to have held is that there
should be sufficient compliance of provisions
of the sub-s. (1) and there should be something
to show that there were grounds before the
Magistrate when he passed the preliminary
order .
(emphasis supplied)
22. Mr. Kantak also relied upon a Full Bench judgment of the Madras
High Court (Madurai Bench) in A. Dhaveethu Vs. The District
Collector, Sivagangai District, Sivagangai & Ors. , reported in
[2016 SCC OnLine Mad 17222] . He submitted that the issue is
concluded by the said Full Bench judgment. The questions of law
considered by the Full Bench, inter alia , were: (i) whether the absence
of a preliminary order under sub-section (1) of Section 145 of the
Code would affect the very jurisdiction of the Executive Magistrate
to proceed further and pass a final order under Section 145; and (ii)
whether failure to pass a preliminary order under Section 145(1) is
a mere irregularity or an illegality affecting the very jurisdiction of
the Magistrate.
23. In the said judgment, the Full Bench of Madras High Court has
considered various judgments of the High Courts as well as of the
Supreme Court, including Rajapati (supra), R. H. Bhutani (supra),
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and Mathuralal (supra). Upon such consideration, the Full Bench
held that:-
63. In the light of the above discussion, we answer the questions
posed by the learned Judge as follows:—
“1. Though the Executive Magistrate is required to pass a
preliminary order under Section 145(1), the absence of the same
will not vitiate his final order under Section 145(4) of the Code.
2. The failure of an Executive Magistrate to pass a preliminary
order under Section 145(1) of the Code is a mere irregularity
and will not affect his jurisdiction.
3. Considering the nature of power vested on the Executive
Magistrate under Section 145 of the Code, no prejudice will be
caused to parties.
4. The aggrieved parties are empowered to move the very same
Authority for reviewing his decision or in its absence, move the
competent civil court for an appropriate relief either regarding the
title or regarding the right to possession. In rare cases, they can
move this Court for a judicial review either under Section 397 of
the Code or under Article 226/227 of The Constitution”.
24. Mr. Kantak’s submission is solely based on the Division bench
judgment in V. K. Rao (supra) and Ajaib Singh (supra). On this
basis, Mr. Kantak submitted that the issues raised by the
Respondents are no longer res integra . He further submitted that the
judgment of the Division Bench in V. K. Rao and Ajaib Singh
(supra) and full bench in A. Dhaveethu are binding on this Court.
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25. I have carefully considered all the judgments cited by Mr. Kantak.
Undoubtedly, the Division Bench in V. K. Rao (supra) has held that
the provision of Section 145(1) of the Code is directory and not
mandatory. The Division Bench has also considered the judgment
of the Supreme Court in R. H. Bhutani (supra) and provided its
interpretation. Further, the Division Bench of Punjab & Haryana
High Court in Ajaib Singh (supra) has also held that once the
Magistrate is satisfied of the information received by him, he is
seized of the jurisdiction and he cannot be divested of the
jurisdiction because he does not pass an order in conformity of law.
However, in view of the judgment of the Hon’ble Supreme Court
R. H. Bhutani, Mathuralal and Rajapati (supra) , the judgments
of the Division Bench in V. K. Rao and Ajaib Singh (supra) are
impliedly overruled, and therefore, are not binding on this Court. In
A. Dhaveethu (supra), the Full Bench of the Madras High Court
has referred to the judgments of the Supreme Court in R. H.
Bhutani and in Mathuralal (supra). However, there are no findings
A. Dhaveethu
given by the Full Bench in (supra) as to why the
judgments of the Supreme Court in R. H. Bhutani and in
Mathuralal (supra) are not binding and should not be followed,
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even though these judgments are binding on the Full Bench of the
High Court.
26. In Mathuralal (supra) the Hon’ble Supreme Court has explained
the scheme of Sections 145 and 146 of the Code and it is held that
a preliminary order is considered so basic to a proceeding under
Section 145 of the Code that a failure to draw up a preliminary order
has been held by several High Courts to vitiate all the subsequent
proceedings. It is by making a preliminary order that the Magistrate
assumes jurisdiction to proceed under Sections 145 and 146.
Therefore, the jurisdiction of the Magistrate under Section 145 of
the Code is entirely dependent on his objective satisfaction as
recorded in writing in a preliminary order. The entire procedure, as
stipulated under Sections 145 and 146, begins, gets regulated and is
concluded only on the basis of a preliminary order. Therefore, a
preliminary order in writing, recording the satisfaction of the
Magistrate, is a sine qua non . I cannot ignore the judgment of the
Mathuralal (supra), which judgment is
Hon’ble Supreme Court in
subsequent to the judgments of the Division Bench in V. K. Rao
and Ajaib Singh (supra) and prior to that of the Full Bench of the
Madras High Court in A. Dhaveethu (supra).
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27. Reading the provisions of Section 145 of the Code and Section 164
of the BNSS, which is identical to Section 164 of the Code along
with the judgments of the Hon’ble Supreme Court in R. H.
Bhutani , Mathuralal and Rajapati (supra), makes it clear that a
preliminary order is so basic that the Magistrate assumes jurisdiction
only after passing a preliminary order.
28. Plain language used in Section 164 requires the Magistrate to make
an order in writing, stating the grounds of his satisfaction about the
existence of a dispute which is likely to cause a breach of peace
concerning any land or water or the boundaries thereof. This is the
same order, a copy of which is required to be served under Section
164 (3) of the BNSS upon such person or persons in accordance
with the provisions of the BNSS, requiring them, inter alia , to put in
written statements of their respective claims as respects the fact of
actual possession of the subject of dispute. Thereafter, the
Magistrate determines the possession of the subject dispute as on
the date on which he makes an order under Section 164 (1) of the
BNSS. Importantly, Section 164 (5) of the BNSS makes a provision
by which a party so required to attend the proceedings as ordered
by the Magistrate or any other interested person is not precluded
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from showing that no such dispute ‘as aforesaid’ exists. In such a
case, Section 164 (5) of the BNSS requires that the Magistrate shall
cancel the order, and all further proceedings shall be stayed. Subject
to such cancellation of the order under Section 164 (5) of the BNSS,
the order passed by the Magistrate under Section 164 (1) of the
BNSS becomes final. The dispute, ‘as aforesaid’ referred in Section
164 (5) of the BNSS is the dispute in respect of which the
Magistrate is satisfied, and such satisfaction is recorded in writing by
stating the grounds in the order passed by him under Section 164
(1) of the BNSS. If there is no mandatory requirement to pass a
preliminary order under Section 164 (1) of the BNSS, then what is
that which will be communicated by the Magistrate under Section
164 (3) of the BNSS and what is that which will be answered by a
party to whom a copy of the order is served, who will file a written
statement? If a preliminary order is not mandatory, then what will
be the subject matter of cancellation or the subject matter of finality
under Section 164 (5) of the BNSS? The only answer to these
questions is a ‘preliminary order’ under Section 164 (1) of the BNSS.
Therefore, the plain language of Section 164 makes such an order
mandatory rather than directory. Further, a preliminary order ought
to record the objective satisfaction in writing by stating the grounds
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so that a party to whom a copy is served will be in a position to file
a written statement in respect of the objective satisfaction recorded
by the Magistrate in a preliminary order on the basis of information
received by him or as stated in the complaint filed before him.
29. The reason for the written order with recording the objective
satisfaction is that a person served with a preliminary order under
Section 164 (3) of the BNSS must be informed of the specific
grounds based on the information, which, according to the
Magistrate, are likely to result in a breach of peace. Importantly,
because the Magistrate must determine possession of the property
in question as on the date of the preliminary order, that property
must be clearly identified in the preliminary order. The jurisdiction
conferred upon the Magistrate is to ensure that the person in
possession on the date of a preliminary order continues in
possession until evicted in accordance with due process of law. The
Magistrate decides the possession of the property and that power
conferred by Section 164 of the BNSS/145 of the Code is very
wide. Therefore, it ought to originate from the mandatory
requirements and procedures stipulated by the provisions of the
Statute, and in no other way.
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30. The language of Section 164 is distinctly different than other
Sections of Chapter XI. The words
“he shall make an order in
are
writing, stating the grounds of his being so satisfied”
specifically used only in Section 164 of Chapter XI. If the
provisions of Section 164 of the BNSS/145 of the Code were to
be treated as directory, it would effectively require reading down the
words
“he shall make an order in writing, stating the grounds
of his being so satisfied” from Section 164 (1) of the BNSS. This
route of interpretation cannot be adopted because it is a settled
principle of law that each word of a Statute must be read and given
meaning.
31. The power conferred under Section 164 of the BNSS is very wide,
and if the language of the Section is treated as directory, it may
result in the confirmation of power, which may be exercised
arbitrarily, and every Magistrate may evolve a different procedure
under the Section if the provisions of the Section are treated as
directory. Under Section 164 of the BNSS, the Magistrate deals with
possession of property; hence, a preliminary order is not merely
procedural, but it is mandatory.
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32. Therefore, an order under Section 164 (1) of the BNSS cannot be
mechanical, and a cyclostyled order cannot be issued by the
Magistrate. That is the reason the Hon’ble Supreme Court, while
considering the scheme of Sections 145 and 146 of the Code, has
held in Mathuralal (supra) that a preliminary order is so basic that
the Magistrate assumes jurisdiction only after a preliminary order is
passed under Section 145 (1) of the Code. Therefore, the
requirement to issue a preliminary order under Section 164 of the
BNSS/145(1) of the Code is mandatory, not directory.
33. There are several decisions of this Court, including in
Ambarishchandra Agarwal vs. State of Maharashtra and anr ,
[2014 SCC OnLine Bom 1548] and Vishwanath Kashinath Virkar
and others vs. Nitinchand Keshavji Gala and others , [1995 SCC
OnLine Bom 142], wherein a consistent view has been taken by a
Single Judge of this Court that it is essential for the Magistrate to be
satisfied and the satisfaction should be in writing, either from a
police report or from other information, that there is a likelihood
of a breach of the peace. Where a Magistrate fails to record in a
preliminary order the reasons or grounds of his satisfaction, such
an order cannot be sustained. Failure to record such satisfaction
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vitiates the entire proceedings. If the Magistrate does not record
reasons for passing a preliminary order, the order is patently illegal.
Thus, the drawing up of a preliminary order is a sine qua non for
initiating action under Section 164 (1) of the BNSS, and Section 164
(1) is a mandatory provision and not directory. The view taken by
the Single judges of this Court is in conformity with the judgments
of the Hon’ble Supreme Court in R. H. Bhutani (supra) and in
Mathuralal (supra).
34. Therefore, I reject the submission of Mr. Kantak that this Court
should ignore the judgments of the Hon’ble Supreme Court in R.
H. Bhutani and Mathuralal (supra) and merely follow the
V. K. Rao A. Dhaveethu
interpretation provided of it in and
(supra). Not only the judgments of the Hon’ble Supreme Court, but
even the plain text of Section 145 of the Code and 164 of the BNSS
make it clear that the Magistrate shall make an order in writing
stating the grounds of his satisfaction in the preliminary order. The
interpretation of Section 145(1) by the Division Benches in V. K.
Rao and Ajaib Singh (supra) is materially different and contrary to
the judgments of the Hon’ble Supreme Court in R. H. Bhutani ,
Mathuralal Rajapati
and (supra). However, as rightly pointed out
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by Mr. Costa Frias, in view of the subsequent judgment of the
Mathuralal (supra), this Court is bound
Hon’ble Supreme Court in
by the law laid down therein, which impliedly overruled the view
taken in V. K. Rao and Ajaib Singh (supra). Mr. Kantak has no
answer to the subsequent judgment of the Supreme Court in
Mathuralal (supra), except the judgment of the Full Bench of the
Madras High Court in A. Dhaveethu (supra), which is contrary to
the view taken by the Hon’ble Supreme Court in R. H. Bhutani ,
Mathuralal and Rajapati (supra).
35. In view of the above, it is clear that:
i) The Magistrate must pass a preliminary order under Section
164 (1) of the BNSS;
ii) A preliminary order must record the reasons for the
Magistrate’s satisfaction regarding the existence of the
dispute;
iii) Such satisfaction must be objective;
iv) A preliminary order cannot be passed mechanically or in a
cyclostyled manner; and
v) The jurisdiction of the Magistrate depends upon a
preliminary order, and in its absence, he cannot assume
jurisdiction.
36.
Mr. Kantak’s alternate argument is that even if it is accepted that a
preliminary order is sine qua non for the proceedings under Section
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164 of the BNSS/145 of the Code and that the jurisdiction of the
Magistrate is dependent on issuance of a preliminary order, in a case
where the proceedings are conducted without a preliminary order,
then those proceedings are not vitiated as held in V. K. Rao (supra)
and mere procedural irregularity does not affect the jurisdiction of
the Magistrate as held in Ajaib Singh (supra). According to Mr.
Kantak, the Supreme Court has merely held in Mathuralal (supra)
that the Magistrate assumes jurisdiction only after a preliminary
order. However, Mr. Kantak Submits that, if the proceedings
continue without a preliminary order, the Supreme Court has not
addressed the consequences of such proceedings. According to Mr.
Kantak, that aspect is only covered by the Division Bench
judgments in V. K. Rao and Ajaib Singh (supra), and therefore, V.
K. Rao Ajaib Singh
and (supra) on that issue of consequences of
the proceedings proceed without a preliminary order are binding on
this Court.
37. It is a settled principle of law that any order passed by a court
without jurisdiction would be coram non judice , a nullity, and ordinarily
should not be given effect to. If the initial action is not in
consonance with the law, all subsequent and consequential
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proceedings would fall through for the reason that illegality strikes
at the root of the order. Therefore, I do not agree even with this
alternate argument of Mr. Kantak. Once it is held by the Hon’ble
Supreme Court that the Magistrate’s jurisdiction is founded on a
preliminary order, any proceedings initiated and concluded without
such jurisdiction are bad in law and stand vitiated. In view thereof,
I reject the alternate submission of Mr. Kantak that this aspect of
the matter is covered by V. K. Rao (supra) and Ajaib Singh (supra).
38. However, Mr. Kantak submitted that in the present case, a
preliminary order was in fact passed by the Learned Magistrate on
29.01.2025, and therefore the objection raised by Mr. Costa Frias is
not relevant. He contended that although the communication dated
29.01.2025 is titled as a ‘notice’ under Section 164 of the BNSS, it
in substance constitutes a preliminary order.
39. I am unable to accept this submission. There is a clear distinction
between a ‘notice’ and a ‘preliminary order’. A preliminary order, as
contemplated under Section 164 of the BNSS, must be founded on
information received by the Magistrate or on a police report. It must
relate to an alleged breach of peace concerning land, water, or their
boundaries. Upon receipt of such information, the Magistrate is
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mandated to make an order in writing by stating the reasons for his
satisfaction about the dispute. The written order is stipulated by the
Section so that it would reflect the grounds of objective satisfaction
of the Magistrate, because the written statement is filed by the
concerned person on the basis of a preliminary order. It cannot be
a mere intimation by way of notice, stating only that the Magistrate
is satisfied on the basis of a complaint or police report. In the
absence of reasons of objective satisfaction in a preliminary order,
it cannot be construed as a preliminary order. Therefore, a ‘notice’
to appear before the Magistrate cannot be a ‘preliminary order’ as
stipulated by Section 164 of the BNSS.
40. In the present case, the notice issued by the learned Magistrate is
based solely on a complaint dated 23.1.2025 filed by the
Petitioner. Although a police report was filed by the Sub-Inspector
of Police, Mandrem, on 29.1.2025, the Learned Magistrate chose to
issue a notice only on the basis of the complaint dated 23.1.2025.
Therefore, according to the Magistrate, the dispute, likely to cause
breach of public peace and public tranquility and disturbance of
communal harmony, was solely on the basis of a complaint dated
23.1.2025 filed by the Petitioner. In this notice, there is only one
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sentence which reads ‘ I am satisfied that there exists a dispute likely to
cause breach of public peace and tranquility and disturbance of communal
harmony in the locality concerning the property bearing survey no. 171/6 at
Morjim, Pernem, Goa. ’. There are no reasons, there are no particulars,
there are no grounds of satisfaction, the property is identified as
171/6, and thereafter the Respondents are called upon to attend the
Court on 10.2.2025. The contents of the notice dated 29.01.2025
can certainly not be that of a preliminary order as contemplated
under Section 164 of the BNSS, and therefore, I reject the argument
of Mr. Kantak that there is a preliminary order in the present case.
41. Mr. Kantak’s next submission is that, assuming there is no
preliminary order drawn by the Learned Magistrate, then it is a mere
irregularity and/or an error and not illegality, and therefore, by
virtue of the provisions of Section 511 of the BNSS, such an
irregularity can be cured because in this case the Respondents did
not raise the issue of jurisdiction in the revision memo, although it
was argued by the Respondents. Further, Mr. Kantak submitted that
the provisions of Section 511 of the BNSS would apply to this case
because there is no failure of justice. The provisions of Section 511
of the BNSS read as follows:
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“511. Finding or sentence where reversible by
(1) Subject
reason of error, omission or irregularity—
to the provisions hereinbefore contained, no finding, sentence or
order passed by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal, confirmation of revision
on account of any error, omission or irregularity in the complaint,
summons, warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Sanhita, or any error, or irregularity in
any sanction for the prosecution, unless in the opinion of that
Court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in
any proceeding under this Sanhita, or any error, or irregularity
in any sanction for the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact whether the
objection could and should have been raised at an earlier stage
in the proceedings.”
42. Section 511 of the BNSS is part of Chapter XXXVII of the BNSS,
which deals with irregular proceedings and the consequences
thereof. The provisions of Section 511 are made subject to the
provisions of earlier Sections in Chapter XXXVII of the BNSS,
which includes Sections 506 and 507.
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“506 - Irregularities which do not vitiate proceedings -----If
any Magistrate not empowered by law to do any of the following things,
namely:—
(a) to issue a search-warrant under Section 97;
(b) to order, under Section 174, the police to investigate an offence;
(c) to hold an inquest under Section 196;
(d) to issue process under Section 207, for the apprehension of a person
within his local jurisdiction who has committed an offence outside the limits
of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of sub-
section (1) of Section 210;
(f) to make over a case under sub-section (2) of Section 212;
(g) to tender a pardon under Section 343;
(h) to recall a case and try it himself under Section 450; or
(i) to sell property under Section 504 or Section 505, erroneously in good
faith does that thing, his proceedings shall not be set aside merely on the
ground of his not being so empowered.
507 Irregularities which vitiate proceedings — If any
Magistrate, not being empowered by law in this behalf, does any of the
following things, namely:—
(a) attaches and sells property under Section 85;
(b) issues a search-warrant for a document, parcel or other things in the
custody of a postal authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under Section 152 as to a local nuisance;
(i) prohibits, under Section 162, the repetition or continuance of a public
nuisance;
(j) makes an order under Part C or Part D of Chapter XI;
(k) takes cognizance of an offence under clause (c) of sub-section (1) of
Section 210;
(l) tries an offender;
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(m) tries an offender summarily;
(n) passes a sentence, under Section 364, on proceedings recorded by
another Magistrate;
(o) decides an appeal;
(p) calls, under Section 438, for proceedings; or
(q) revises an order passed under Section 491, his proceedings shall be
void.”
43. Chapter XXXVII of the BNSS has divided the irregularities which
do not vitiate the proceedings by listing them in Section 506 and the
irregularities which vitiate the proceedings by listing them in Section
507 of the BNSS. The provisions of Section 164, which are in
Chapter XI (Part D) of the BNSS, are not a part of the list provided
in Section 506 of the BNSS. Therefore, the acts of irregularities or
errors of the Magistrate under Section 164 of the BNSS cannot be
saved by virtue of the provisions of Section 506 of the BNSS. On
the contrary, the list of irregularities covered by Section 507 (j)
specifically includes “ makes an order under Part C or Part D of
Chapter XI ”. Therefore, by clear provision of Section 507 (j) of
the BNSS, if any Magistrate, not being empowered by law in this
behalf, makes an order under Part C or D of Chapter XI, then the
entire proceedings are vitiated. Importantly, the provisions of
Section 507 (j) only cover Parts C and D of Chapter XI, and
specifically, it does not cover Parts A and B of Chapter XI. The very
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purpose of the provisions of Section 507 (j) of the BNSS is to
ensure that the provisions of Part C and D of Chapter XI are
complied with in their entirety and as stipulated by the Sections of
Part C and D of Chapter XI of the BNSS. Further, the provisions
of Section 511 are not applicable to the orders that are passed
without jurisdiction because the provisions of Section 511 only
cover the order and findings of ‘a court of competent jurisdiction’.
Exercising jurisdiction without following the procedure as stipulated
by Section 164 of the BNSS by itself is illegal and not irregular. That
is why Section 507 (j) of the BNSS specifically covers the order
under Section 164 of the BNSS. Additionally, because Section 507
(j) covers the order under Section 164, the provisions of Section 164
are mandatory and not directory. When the proceedings are
conducted without following the mandatory provision, the
Magistrate cannot assume jurisdiction and therefore, it is not a mere
irregularity, but an illegality. Therefore, I reject Mr. Kantak’s
argument based on Section 511 of BNSS that the findings and order
of the Learned Magistrate are covered by Section 511 of the BNSS.
In fact, by virtue of the provisions of Section 507 (j) of the BNSS,
the entire proceedings conducted by the Learned Magistrate are
vitiated. Even on this aspect, in view of the judgments of the
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Hon’ble Supreme Court in R. K. Bhutani , Mathuralal and
Rajapati (supra), that the Magistrate assumes jurisdiction only after
a preliminary order. Therefore, the judgment of the Division Bench
of the Punjab and Haryana High Court in Ajaib Singh (supra) is
not of any assistance to the Petitioner. In Ajaib Singh (supra) the
view is taken that the order passed by the Magistrate without a
preliminary order is a mere irregularity and therefore the provisions
of Section 537 of the Code (511 of the BNSS) would cure the
irregularities in the proceedings. Accordingly, the Division Bench
interpreted the word ‘empowered’ used in Section 530 of the Code
(507 of the BNSS). This view cannot be considered in view of the
subsequent judgments of the Hon’ble Supreme Court in R. K.
Bhutani, Mathuralal and Rajapati (supra).
44. Mr. Kantak also cited judgments on the law of precedents to submit
that the view taken in V.K. Rao (supra) by the Division Bench of
this Court and the interpretation of R. K. Bhutani (supra) is
binding on this Court. The judgments cited on behalf of the
Petitioner on the subject cannot be of any assistance to the
Petitioner because the judgments of the Hon’ble Supreme Court are
binding on this Court. Therefore, I completely agree with the
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approach taken by the learned Judge in following the judgments of
the Supreme Court and not that of the Division Bench in V. K.
Rao (supra).
45. The impugned judgment is passed by the Learned Judge in a
revision application filed by the Respondents under Section 438 of
the BNSS. Mr. Kantak, on the basis of K. Ravi v/s State of Tamil
Nadu, [2024 SCC Online SC 2283] , submitted that the Learned
Judge has wrongly exercised jurisdiction under Section 438 of the
BNSS by appreciating the evidence on record.
46. In K. Ravi (supra), the Hon’ble Supreme Court has interpreted the
scope of Section 397 of the Code (438 of the BNSS) by following
its earlier judgment in Amit Kapoor Vs. Ramesh Chander, [(2012)
9 SCC 460] and has held that :
“9. At this juncture, it would be apt to refer to the observations
made by this Court in Amit Kapoor v. Ramesh Chander 1,
explaining the scope of Section 397 Cr. P.C. It was held
that—
“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior
court for the purposes of satisfying itself as to the legality
and regularity of any proceedings or order made in a
case. The object of this provision is to set right a patent
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defect or an error of jurisdiction or law. There has to be
a well-founded error and it may not be appropriate for
the court to scrutinise the orders, which upon the face of
it bears a token of careful consideration and appear to
be in accordance with law. If one looks into the various
judgments of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions under
challenge are grossly erroneous, there is no compliance
with the provisions of law, the finding recorded is based
on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These are
not exhaustive classes, but are merely indicative. Each
case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the
inbuilt restrictions is that it should not be against an
interim or interlocutory order. The Court has to keep in
mind that the exercise of revisional jurisdiction itself
should not lead to injustice ex facie. Where the Court is
dealing with the question as to whether the charge has
been framed properly and in
accordance with law in a given case, it may be reluctant
to interfere in exercise of its revisional jurisdiction unless
the case substantially falls within the categories
aforestated. Even framing of charge is a much advanced
stage in the proceedings under the CrPC.”
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10. Thus, the scope of interference and exercise of jurisdiction
under Section 397 Cr. P.C. is extremely limited. Apart from
the fact that subsection 2 of Section 397 prohibits the Court
from exercising the powers of Revision, even the powers under
sub-section 1 thereof should be exercised very sparingly and
only where the decision under challenge is grossly erroneous, or
there is non-compliance of the provisions of law, or the finding
recorded by the trial court is based on no evidence, or material
evidence is ignored or judicial discretion is exercised arbitrarily
or perversely by framing the charge. The Court exercising
Revisional Jurisdiction under Section 397 should be extremely
circumspect in interfering with the order framing the charge,
and could not have interfered with the order passed by the Trial
Court dismissing the application for modification of the charge
under Section 216 Cr. P.C., which order otherwise would fall
in the category of an interlocutory order.”
47. In the present case, the Learned Judge has exercised his jurisdiction
under Section 438 of the BNSS and has called for the record of the
proceedings from the Learned Magistrate. The Learned Judge has
not only passed the impugned order on the basis that there is no
preliminary order as mandated by Section 164 of the BNSS, but has
also decided the revision application by considering the facts of the
case. Once, on the basis of the law laid down by the Hon’ble
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Supreme Court in Mathuralal (supra), the Learned Judge came to
the conclusion that the order was passed without jurisdiction in view
of the fact that there was no preliminary order passed by the
Magistrate, then the Learned Judge was justified in deciding the
matter even on facts in revision application for the purpose of
setting right a patent defect and an error on facts as well as law.
48. It is well-settled law that the jurisdiction of the Magistrate under
Section 164 of the BNSS is limited to deciding the actual possession
of the disputed property as on the date of a preliminary order. The
order passed by the Magistrate under Section 164 is temporary in
nature and subject to the determination of rights and title by a
competent court. The Magistrate cannot decide the title of the
property in dispute. Therefore, in the present matter, the Learned
Magistrate, under Section 164 of the BNSS, was required only to
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decide the actual possession of the said disputed property as on 29
January 2025.
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49. The order passed by the Learned Magistrate on 7 April 2025 clearly
shows that the Learned Magistrate has not decided the actual
possession of the said property by appreciating the evidence before
him or by conducting an inquiry, and has not followed the
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mandatory requirements of Section 164 of the BNSS. Therefore,
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the Learned Judge has justified interference in the order dated 7
April 2025 passed by the Learned Magistrate by exercising his
jurisdiction in the revision proceedings on facts and in law.
50. The record clearly indicates the patent errors in law and on the facts
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in the order dated 7 April 2025, passed by the Learned Magistrate,
which are as follows:
i) The Learned Magistrate has proceeded by recording that both
parties have chosen not to lead any evidence in the matter. This
is factually wrong. The Learned Judge, after reviewing the
record, has held that no such statement was made by the
Respondents in the proceedings. The Roznama maintained in
the proceedings does not disclose any such statement and the
matter was never posted for evidence. Further, the Roznama
does not disclose that the preliminary order under Section 164
was ever passed. Even the Learned Magistrate proceeded merely
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on the basis of the Notice issued on 29 January 2025.
Therefore, the entire approach of the Learned Magistrate to
decide the proceedings under Section 164 of the BNSS is
factually wrong. Thereafter, the Learned Magistrate has recorded
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that he has decided the matter on the basis of the material on
record. If that is so, then there are no findings in the order of
the Learned Magistrate as to why the Petitioner was in actual
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possession of the said property as on 29 January 2025.
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ii) The Notice dated 29 January 2025 describes the said property
as survey No. 171/6 at Morjim, Pernem Goa. Admittedly, there
is more than one house standing on survey No. 171/6. The
pending dispute between the parties under the Mundkar Act is
only in respect of House No. 793 standing on survey No. 171/6.
The Respondents never claimed any rights in respect of the
entire survey No. 171/6 or other houses and structures standing
thereon. Therefore, the Learned Magistrate ought to have made
an inquiry in respect of the actual possession of House No. 793
standing on survey No. 171/6. No such inquiry was conducted
by the Learned Magistrate. The inquiry ought to have been done
by the Learned Magistrate, particularly in view of the admitted
fact that the proceedings under the Mundkar Act are pending
between the parties for a long time.
iii) The entire order passed by the Learned Magistrate practically
proceeds on the basis of the title of the said property. The
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material produced by the Petitioner is only in respect of the title
to the said property. The title was not in dispute at all because
the Respondents have never claimed any ownership of the
property. The claim made by the Respondents is of
Mundkarship, and therefore, the ownership is admitted by the
Respondents. The Learned Magistrate has even exceeded his
jurisdiction in this regard, though at the end of the order, he has
stated that he has not decided the title of the said property. The
fact that the Respondents have lost the proceedings under the
Mundkar Act and the appeal has also been dismissed and the
proceedings are pending before the Administrative Tribunal are
not relevant facts to decide the factum of possession of House
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No. 793 as on 29 January 2025. The Learned Magistrate has
only considered these facts to decide the matter in favour of the
Petitioner. Further, the Form I & XIV maintained under the
Land Revenue Code shows that the Petitioner is the owner and
occupant of the said property. The Learned Magistrate has
considered this document and the facts to arrive at the
conclusion that the Petitioner was in possession of the said
property. The Learned Judge has rightly held that the
presumption under Section 105 of the Land Revenue Code is a
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rebuttable presumption and I agree with this finding. In any case,
when the dispute was only in respect of House No. 793 standing
on survey No. 171/6, there was no reason to consider Form No.
I & XIV for the entire property. The proceedings under Section
164 of the BNSS cannot be decided on the basis of the land
revenue record. It requires evidence to establish actual
possession as on the date of a preliminary order, and therefore,
the Learned Judge has rightly held that there is no evidence on
record to establish that the Petitioner was in actual possession
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of House No. 793 as on 29 January 2025. The fact that the
Respondents also have a house somewhere else and they are
residing there and that the address on the voter list is not of
House No. 793, cannot be a factor in favour of the Petitioner,
and the Learned Judge has rightly held so. The Learned Judge
has rightly held that because the Petitioner is the owner of the
said property, it does not establish that the Petitioner was in
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actual possession of House No. 793 as on 29 January 2025.
iv) It is clear from the record that when there is long standing
dispute between the parties only in respect of House No. 793
standing on survey No. 171/6. If that is so, then there was no
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reason to include the entire property, having many houses and
structures standing thereon, in the complaint. Admittedly, survey
No. 171/6 is a very large property that includes a resort owned
by the Petitioner. When the claim in respect of Mundakarhip is
pending only in respect of House No. 793 standing on survey
No. 171/6, the Petitioner ought to have mentioned that fact in
the complaint. However, that was not mentioned and the house
was identified by the Respondents only when they filed their
written statement. This was a mischievous attempt made by the
Petitioner to abuse the process of law, and the Learned
Magistrate completely ignored this fact.
v) It is the case of the Respondents that House No. 793 situated in
survey no. 171/6 of village Morjim, Pernem Goa was
constructed by their grandfather, late Savlaram Tari. The
construction of the house No. 793 took place with the consent
of the original landlord Jose Piedade Fernandes. Thereafter, the
ancestors and their Descendants have been residing in House
No. 793 and is in full possession thereof. In the background of
this claim of the Respondents, if, according to the Learned
Magistrate, it was agreed that the matter would be decided on
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the basis only of material on record, then it is clear from the
record that the Learned Magistrate has not considered the
evidence produced by the Respondents to establish their
possession of House No. 793 standing on survey No. 171/6.
This evidence includes:
1. A copy of affidavits of legal heirs of the late Jose Piedade
Fernandes, (the original landlord and father of the Petitioner
stating on oath that their father/father-in-law had allowed
late Saularam Tari to construct the house in the property
surveyed under No.171/6 of Village Morjim and the fact
acknowledging that the Respondents are Mundkars of House
No. 793 situated in said property.
2. A copy of the NOC dated 08.03.2024 given by Mrs. Pulqueria
S. D'Souza giving no objection to Smt. Satyawati S. Tari for
water connection.
3. A copy of the Income certificate issued by the Village
Panchayat of Morjim to Smt. Satyavati S. Tari for obtaining
a free water connection.
4. A copy of the no objection certificate dated 02.03.2004 given
by the Sarpanch, Village Panchayat of Morjim, stating that
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the H.No. 793 is registered for assessment of tax in the name
of Smt. Satyawati Tari is used for residential purposes.
5. A copy of the contract for water supply having the thumb
impression of the consumer; declaration dated 11.03.2004 by
Satyawati Tari;
6. A copy of the application dated 11.03.2004 requesting a free
water supply connection by Satyawati S. Tari;
7. A copy of an FIR No.177/2015 dated 13.11.2015 of Pernem
Police. In November 2015, the possession of the
Respondents over house No. 793 was disturbed when the
grandmother of the Respondent was admitted to the hospital.
Respondents filed an FIR No. 177/5 against the Petitioner at
Pernem Police Station and the case was registered against the
Petitioners bearing case no. 85/IPC/2015. FIR was filed by
Respondents against the Petitioners by making allegations
that Petitioners broke open the lock and stole all the valuable
belongings of the Respondents and threw all the furniture,
utensils and demolished Tulsi Vrudanvan situated in front of
the house. Allegations were also made that the Petitioner
removed idols of the Hindu god by replacing Christian gods
in order to depict it as a Christian house. This incident was
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widely published in the local newspaper and the Respondents
have produced a newspaper cutting along with photographs.
Thereafter, local administration and police restored the
possession of the Respondents of House No. 793 situated in
survey no. 171/6.
8. Newspaper cutting of article published in Marathi newspaper
dated 17.11.2015, another newspaper cutting of newspaper
Lokmath dated 22.11.2021, another newspaper cutting of the
incident that led to the filing of the complaint against the
Petitioner by the Respondent on 13.11.2015.
9. There are photographs produced on record by the
Respondents depicting the celebration of all Hindu festivals,
such as Ganesh Chaturti, Tulsi Vivah, and Nagpanchami, in
House No. 793.
10. A copy of the certificate dated 05.12.2015 issued by the
Village Panchayat of Morjim certifying that as per the records
maintained and available in the office of the Panchayat,
House bearing No. 793 situated at Vithaldaswada, Morjim,
Pernem-Goa is registered in the name of Savlaram B. Tari
since the year 1987-88. Certificate of panchayat further
certifies that House No. 793 has been transferred in the name
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of Smt Satyavati S. Tari in the year 2012-2013 and now the
house is registered in the name of Smt. Satyavati S. Tari as
per the Panchayat record. It is also certified by the Village
Panchayat that the house tax has been paid until 2015-16.
11.
A copy of the Certificate dated 09.02.2021 issued by the
Village Panchayat of Morjim, certifying that as per the
records maintained/available in the Village Panchayat Office
Houses No.793 situated at Vithaldaswada, Morjim. Pernem
Goa, is registered in the name of Shri. Vithal Savlaram Tari
( father of Respondent Nos.1 and 2) and further certified that
House No. 793 is registered for house tax assessment since
the year 1987-88 till date i.e. 2020-2021.
12. A Copy of the House Tax receipt dated 14.10.2001 in the
name of Savlaram B. Tari.
13. A Copy of Electricity Bill standing in the name of Vithal
Savlaram.
14. A copy of the water bill standing in the name of Smt.
Satyawati Tari.
15. A copy of the complaint dated 19.10.2015 filed by Shri. Vithal
S. Tari stating that Nobert Fernandes/Petitioner had started
illegal construction of a compound wall around the
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Respondent’s dwelling house in the property bearing Survey
No.171/6 situated at Morjim, Pernem, Goa.
16. A copy of the complaint dated 05.11.2022 by Smt. Rukmini
Vithal Tari against the Petitioner to the Village Panchayat of
Morjim, making an allegation that the Petitioner was carrying
out illegal construction of a building comprising three floors
in Survey No. 171/6 at Vithaldas Wado, Morjim.
17. A copy of the letter dated 22.02.2023 by the Secretary cum
PIO of the Village Panchayat of Morjim to Rohan Vithal Tari
for furnishing the information and the documents, such as
the panchanama dated 07.01.2023, the site inspection
attendance sheet, and a copy of the sketch of the illegal
construction carried out by the Petitioner.
18. Copy of complaint dated 17.03.2023 filed by Rohan Vithal
Tari Volvoikar before the GCZMA, Patto, Panaji, against the
Petitioner, making allegations of illegal construction in
Survey No. 171/6 of Village Morjim.
19. A copy of the survey plan of Survey No.171/6 of Village
Morjim showing the presence of the house therein.
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20. A copy of the Election Identity card of Satyawati Savlaram
Tari, aged 76 years, showing address as 793, Vithal Rukmini
Temple, Vithaldaswada, Morjim, issued on 04.01.2007.
51. The Learned Magistrate has not even dealt with the above-listed
documents. The sole basis for the Learned Magistrate’s order is that
the Petitioner is the owner of the property. The Learned Magistrate
has clearly erred on facts and in law.
52. All the above are manifest and patent errors in law and on the facts,
resulting in gross injustice to the Respondents. The order passed by
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the Magistrate on 7 April 2025 is grossly erroneous and without
jurisdiction; in non-compliance with the provisions of law. The
findings recorded in favour of the Petitioner are based on no
evidence and by ignoring the material evidence produced by the
Respondents. The order of the Learned Magistrate is perverse and
arbitrary in view of the fact that he completely ignored the
documents produced by the Respondent to establish their
possession of House No. 793. Therefore, the Learned Judge was
completely right in exercising his jurisdiction under Section 438 of
the BNSS. The reading of the impugned order justifies interference
in the revisional jurisdiction practically on all grounds. The
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Petitioner has abused the process of law by systematically invoking
the provisions of Section 164 to take possession of the said
property during the pendency of the Respondents Appeal under the
Mundkar Act, thereby gaining possession of the said property
without following due process of law.
53. I agree with the findings of the Learned Judge in the impugned
order. Therefore, I reject the submissions of Mr. Kantak that the
Learned Judge has committed a manifest and patent error in law in
re-appreciating the documents/records in exercise of revisional
powers under Section 438 of the BNSS, 2023. The findings of the
Learned Judge in the impugned order are well-reasoned, and the
Learned Judge has exercised the jurisdiction under Section 438 of
the BNSS in conformity with the judgment of the Hon’ble Supreme
Court in K. Ravi v/s State of Tamil Nadu, [2024 SCC Online SC
2283] .
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54. Therefore, the interim protection granted on 25 August 2025 to
the Petitioner and continued thereafter stands vacated. The Police
Inspector, Morjim Police Station, is ordered and directed to
implement the order of the Additional Session Judge-2, Mapusa,
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Goa, dated 20 August 2025 (being Exhibit A hereto) within a
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period of two weeks from today. The Respondents undertake to this
Court that, except for House No. 793, they are not claiming any
rights of possession in respect of houses/structures standing on
Survey No. 171/6 of Village Morjim, Pernem, Goa. The
undertaking of the Respondents is accepted. The findings in this
judgment shall not be used by the parties in any pending
proceedings between them under the Mundkar Act. The Writ
Petition stands dismissed. The Rule is discharged.
55. The Petitioner shall pay a sum of Rs.10,000/- to Respondent Nos.
1 and 2 as and by way of cost within a period of one week from
today.
56. This order will be digitally signed by the Private Secretary/Personal
Assistant of this Court. All concerned will act on the production
by fax or email of a digitally signed copy of this order.
[AMIT S. JAMSANDEKAR, J.]
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