Need help to understand of ipc145
BR
(Querist) 10 July 2012
This query is : Resolved
Hi,
We have a property which we gave on a lease to an oil company. According to lease after 30 years the lease would be renewed with the same criteria. But after completion of 30 years, the company was trying to change the original lease deed and we never signed it. Meanwhile they were trying to operate their business in our property without the renewed lease. We have a civil suit against them and parallely we got IPC 145 on our land. So legally, they are not allow to enter our land. BUT, nowadays in our physical absence they have started to change the structure of the land and make alterations to the construction there. Can you please help me to understand what is the legal way to stop their this kind of criminal activity?
Thanks
adv. rajeev ( rajoo )
(Expert) 10 July 2012
Have you filed any injunction suit or any temporary inj., application in the pending suit. If you have an order temporary injunction then you can file an application u/o 39 r 2(a) to keep the defendant in civil imprisonment
ashutosh mishra
(Expert) 10 July 2012
Hey!
you seem to be confused about section 145 Ipc
which has nothing to do with your facts.
Even 145 Cr.P.C which covers dispute as to possession of any property likely to cause breach of peace would not help you because a lessee once inducted can be evicted only by process of law when he does not give up possession on expiry and non renewal of a fixed term lease.
However you may seek injunction against him
in civil court besides seeking eviction decree and damages for unauthorized occupation.
BR
(Querist) 10 July 2012
Thanks for your help.You are right about the 145 CRPC.
No we did not file a civil injunction yet.
Let me give you more clear idea about the situation.
The original lease had a 30 + 10 + 10 years clause. The lease had to be renewed after 30 years for 10 yrs, and then 10 more yrs again. About 12-14 years ago, the lease was due for renewal and it never happened because of contention over the content of the lease (They added new clauses, different frm the original lease). After abt 3-4 years, they were unable to run viable business, so they left our property 10 years ago. The property since then is in our possession. But suddenly when my parents were out of town they wanted to take the possesion and file a case against my father and got 144 from the court. Though my father was not present at that time in India. Next my sister took this up and filed a case against them and that is when court give a 145 because court understood that my parents were in out of the country and the oil company had lied to court to get 144.
But after geting the 145 they did not stop working at our property so police came and arrested 2 people from there. So 145 is still pending in the court so now what do you suggest to do?
Can i ask police to take care of our property and make a seizure list of that so we can prove in the court that they were trying to violate the 145 and trying to get possesion illegally in our property? we can use this in our civil case? How do we prove things?
Thanks
ashutosh mishra
(Expert) 10 July 2012
So now you say that lease expired and could not got renewed and lessees vacated at then.
Since then owner have been in possession.Then it is a case of encroachment.Section 145 Cr.p.c. is attracted here.It reads as given below:
The Code of Criminal Procedure, 1973 (CrPc)
145. Procedure where dispute concerning land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(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 the Code for the service of a 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 then, 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 and which of the parties was, at the date of the order made by him under subsection (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 arty 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, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from 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 the Magistrate to proceed under section 107.
HOW EVER IF POLICE OR MAGISTRATE IS SUSPECTED TO BEHAVE YOUR WAY,SUIT OF TITLE,INJUNCTION AND DAMAGES CAN BE FILED IN CIVIL COURT.
BR
(Querist) 12 July 2012
Hello Sir,
Thanks for all your suggestion and help.
We filed a diary against the encroachment.But it looks like they are not very helpful towards my father. My father is 72 years old and had been thru a lot.Initially they denied to take the diary then after a long discussion and when we told them that we will go to SDO and complain against you then they took the diary. But because that property and all set up their are in our possession and my father was using then as store room.Now because they put their locks we are unable to use them.
Can we break their lock and use those room again?
What is the legal way to break their lock and do we have to inform anyone before doing that?
That property is in our possession and we got 145 against them and court asked then not to enter our property until further notice from court.
Because we are in possession so i believe we can break their locks and before doing that we should inform the police station.
Experts can you correct me if i am wrong or it should be done in different way.
Thanks
ashutosh mishra
(Expert) 12 July 2012
It would be best and in your interest that now you seek chamber consultation of a local property lawyer after getting inspected the proceedings going on otherwise you may get in mess.
BR
(Querist) 12 July 2012
Thank you for your quick response and suggestion
