036-NLR-NLR-V-78-S.-A.-KANAGASABAI-Petitioner-and-M.-K.-MYLWAGANAM-Respondent.pdf
280
S H ARVANAN DA J.■—Kanagasabai v. Alyl vagan am
1976 Present : Sharvananda, J., and Wanasundera, J.S. A. KANAGASABAI, Petitioner, and M- K. MYLWAGANAM,
Respondent
S. C. Application 471/76—M.C. Colombo 42282/1
Administration of Justice Law—Sections 62, 63, 65—Relevance of 'suitpending in civil court—Conditions precedent to the exercise ofjurisdiction—Meaning of dispute affecting land.
The mere fact that a suit is pending in a civil court does notdeprive the Magistrate of jurisdiction to make an order underSections 62 and 63 of the Administration of Justice Law, No. 44 of1973.
It is sufficient for a Magistrate to exercise powers underSection 62 if he is satisfied on the material on record that thereis a present fear that there will be a breach of the peace stemmingfrom the dispute unless proceedings are taken under the section.
The Magistrate’s jurisdiction under section 62 extends todisputes relating to the possession of business premises, and is notconfined to disputes affecting agricultural or pastoral land.
The inquiry under section 62 is directed to the determina-tion as to who was in actual possession of the land on the date ofthe issue of the notice under Section 62 (1) irrespective of therights of the parties or their title to the said land. On his reachingthat finding the Magistrate may unless the facts fall within section63(3) make an order under section 63(2).
Application IN REVISION against an order of theMagistrate’s Court, Colombo.
M. Tiruchelvam, with N. Tiruchelvam and M. T. M. Faiz, forthe Petitioner.
SIIARVAXAJNDA, J.—Kanagaaabai v. Mylvaganam
281
H■ L. dc Silva, with S. Mahenthiram for the 1st Respondent.
Cur. adv. vult.
September 24, 1976. Sharvananda, J.—
This is an application to revise an order made by the Magis-tate declining to proceed to act under section 62 of the Admini-tration of Justice Law.
By his report dated 3.5.76. the Inspector of Police, Pettah,stated to Court that on a complaint made by the petitionerKanagasabai that he was conducting a partnership business atpremises No- 68A, 4th Cross Street, Pettah, and that after hisclosing the shop on 30.4.76 and was about to leave, he wasforcibly pushed out by the respondent Mylwaganam who wasoccupying the other portion of premises No 68, 4th Cross Street,the Police visited the place and found that there was a wallwhich was separating premises No. 68A, from the rest ofpremises No. 68 and that this wall was demolished by the res-pondent Mylwaganam and both the premises were convertedinto one shop by him. The report also stated that there weretwo name-boards : (1) N. K. Mylwaganam & Co. (1st respon-dent’s firm) and (2) M. Thasan Trades (Petitioner’s firm),and there were two iron safes and three balances and tables anda heap of iron bars. The report also referred to the fact thatboth parties were inside the shop and could not come to a settle-ment about the possession of the premises. According to thereport, as the Police expected a breach of the peace, they tookcharge of the keys of the shop from the respondent Mylwaga-nan and asked both parties to close the shop and go away fromthe premises.
The Inspector produced both the parties, namely the petitionerand the respondent, and moved the Court to take action undersection 62 of the Administration of Justice Law. (Premises No.68A, the right to possession of which is in dispute, is a definedportion of premises No. 68, 4th Cross Street. There is no disputeregarding the possession of the balance portion of premises No.68. It is conceded that the respondent Mylwaganam is entitled topossession of that balance portion falling outside premises No.68A). Though, according to the report dated 3.5.76, both thepremises, namely, premises No. 68A and the balance portion ofpremises No. 68, have been closed on the orders of Court and thekeys of which had been taken charge of by the Police and beenproduced in Court along with the report on 4.5.76, the Police,without any further order of Court, returned the keys of thebalance portion of premises No. 68 to the respondent Mylwaga-nam. As the learned Magistrate in this case points out, theconduct of the Police, after having filed the report in Court and
282
SHARVANANDA, J.—Kanagaaabai v. Mylvaganam
produced the keys of premises No. 68 in Court, is highly arbitraryThe Police should have awaited the orders of Court and shouldnot have done anything to affect the status quo. It is regrettablethat the Police should have misconceived their functions andpowers. Once the keys were productions in Court, they couldhave been returned by the Police to any party only on the ordersof Court and not of any other authority. I concur with theMagistrate in condemning the action of the Police. Seriousnotice will be taken of any action by the Police which interfereswith the orders of Court.
The inquiry on the Police report commenced on 11.5.76, atwhich both the petitioner and the respondent were present andrepresented. Counsel for the respondent Mylwaganam, at the out-set informed the Court that his client had instituted actionNo. 3/1745/RE in the District Court of Colombo for a declarationthat the petitioner Kanagasabai is not the tenant of premisesNo- 68A, 4th Coss Street, Pettah, and that the petitioner had nomanner of right to occupy the said premises and for an interimand permanent injunction restraining the petitioner from enter-ing into occupation of the said premises No. 68A. He also statedthat in pursuance of his application for an interim injunction,the District Court had issued an ex parte interlocutory orderunder section 565 of the Administration of Justice Law. Hesubmitted that in view of the proceedings pending in the Dis-trict Court regarding the possession of premises No. 68A, theMagistrate’s Court should not make any order under section 62or 63 of the Administration of Justice Law.
By his order dated 22.6.76, the Magistrate held that in view ofthe application pending before the District Court, he should notproceed to act under section 62 of the Administration of JusticeLaw. According, he refused to proceed to inquire. It is this orderwhich is sought to be revised.
In my view, the learned Magistrate has mis-direeted himselfas to the nature of the proceedings under section 62 of the Admi-nistration of Justice Law and the ambit of his jurisdiction in rela-tion to proceedings pending in a civil Court. As was stated inImambu v. Hussenbi (A.I.R. 1960 Mysore 203) : “ If a civil Courtdecided the question of possession even for the purpose of givingan interim injuction, the Magistrate, acting under Section 145of the Indian Criminal Procedure Code (which corresponds tosection 62 of our Administration of Justice Law) should respectthat decision. But the mere pendency of a suit in a civil Courtis wholly an irrelevant circumstance and does not take away thedispute which had necessitated a proceeding under section 145The possibility of a breach of the peace would still continue.”
SHAH VAN AND A, J.—Kanagasabai v. Mylvaganam
283
Section 62 of the Administration of Justice Law confers specialjurisdication on a Magistrate to make orders to prevent a disputeaffecting land escalating and causing a breach of the peace. Thejurisdication so conferred is a quasi-criminal jurisdiction. Theprimary object of the jurisdiction so conferred on the Magistrateis the prevention of a breach of the peace arising in respect ofa dispute affecting land. The section enables the Magistratetemporarily to settle the dispute between the parties before theCourt and maintain the status quo until the rights of the partiesare decided by a competent civil Court. All other considerationsare subordinated to the imperative necessity of preserving thepeace. The section requires that the Magistrate should be satis-fied, before initiating the proceedings, that a dispute affectingland exists and that such dispute is likely to cause a breach of thepeace. But, once he is satisfied of these two conditions, the sectionrequires him to proceed to inquiry and make order undersection 63. The pendency of a civil suit in respect of the right inquestion is no bar to action being taken under section 62 of theAdministration of Justice Law. At an inquiry under that sectionthe Magistrate is not involved in an investigation into title orright to possession, which is the function of a civil Court. Theaction taken by the Magistrate is of a purely preventive andprovisional nature in a civil dispute, pending final adjudicationof the rights of the parties in a civil Court. The proceedingsunder this section are of a summary nature and it is essentialthat they should be disposed of as expeditiously as possible.Section 65 of the Administration of Justice Law expressly statesthat no order under section 62 or section 63 shall affect or pre-judice any right or interest in any land or part of land which anyperson may be able to establish in a civil suit. Sub-sections (2)and (6) of section 63 of the Administration of Justice Law underline the fact that the order made by the Magistrate undersections 62 and 63 is intended to be effective only up to the timea competent Court is seized of the matter and passes an order ofdelivery of possession to the successful party before it, or makesan order depriving a person of any disputed right and prohibitinginterference with the exercise of such right.
The plaint in Case No. 3/1745/RE by the respondentMylwaganam was filed in the District Court of Colombo on7.5.76 subsequent to the commencement of proceedings in theMagistrate’s Court. In that action, the respondent prayed for adeclaration that the defendant (the present petitioner) was notthe tenant of the said portion No. 68, 4th Cross Street ( commonlyreferred to as No. 68A, 4th Cross Street), and that the defendanthad no manner of right to occupy the said portion and for aninterim injunction preventing the defendant from entering into
284
SHARVARANDA, J.—Kanagasabai v. Mylvaganam
occupation of the said portion until a final determination of theaction and also for a permanent injuction restraining thedefendant from entering the said portion and premises. By theinterlocutory order dated 10.5.76 made in terms of Section365 (1) (b) of the Administration of Justice Law, the DistrictJudge ordered that “ the 17th day of May, 1976, is hereby appoin-ted for a determination of the matter of the applicant and thatthe matter will be inquired into on the said 17th day of May,1976 This is the interlocutory order referred to by Counsel forthe respondent in his submissions made before the Magistrateon 11.5.76 and by the Magistrate in his order dated 22.6.76. It isto be noted that interim injunction in terms of the prayer in theplaint had not been granted by the Court on the application, butthe Court had only made an interlocutory order fixing a datefor inquiry. The defendant had not been enjoined from doinganything until the hearing and decision of the application for aninterim injunction. Hence, no enjoining order or an interiminjunction restraining the petitioner from entering into occupa-tion of premises No. 68A was in operation at the material timeof the inquiry by the Magistrate which inhibited the exercise ofhis powers under sections 62 and 63. The Magistrate has falleninto an error in conceiving that his jurisdiction has been oustedby the proceedings taken by the respondent in the DistrictCourt subsequent to the institution of the present proceedingsby the Police. As stated earlier, the mere pendency of a suit ina civil Court is an irrelevant circumstance for the Magistrate totake into consideration when making an order under sections 62and 63 of the Administration of Justice Law. His primaryfunction is to maintain law and order. If the mere institution ofa suit in a civil Court is sufficient to divest the Magistrate of hisjurisdiction, the whole purpose of section 62 will be defeated. Ascheming party will be enabled to play hide and seek. A personwho has taken forcible possession, realising that the decision ofthe Magistrate would go against him, may rush to a Civil Courtto stall for time and in the meanwhile continue to be in unlawfulpossession of the premises. The law cannot countenance any suchaction which is calculated to render nugatory the proceedingsbefore the Magistrate. A party, by merely instituting a civilproceeding, cannot hamstring the Magistrate from proceedingwith the inquiry under section 62. Such confrontation does notjustify the Magistrate abdicating his functions under section 62.Of course, if the civil Court has already given a decision, finalor interim, prior to the Magistrate making his order under section63, to that extent as the dispute between the parties is decidedby a competent Court, the Magistrate would be justified in mak-ing his order on the basis of such decision. But, in the absence ofsuch a decision, the Magistrate’s jurisdiction to make an order
SHARVANANDA, J.—Kanagasabai v. Mylvaganam
285
under section 63 is not affected. Correspondingly, a civil Court,before making any decision in the shape of an interim order onthe dispute, will have regard to the proceedings pending in theMagistrate’s Court under section 62 of the Administration ofJustice Law and will, unless there are special circumstances,refrain from proceeding to make an interim decision if proceed-ings under section 62 are pending in the Magistrate’s Court. Ifthe Magistrate has already made an order under section 63 of theAdministration of Justice Law, in my view, the civil Court willnot have jurisdiction to make any interim order which will inany way prejudice the right of a party who has succeeded ingetting an order in his favour under section 63 of the Administra-tion of Justice Law. For, in terms of section 63 (2) and (6), thesuccessful party will be entitled to be in possession until he isejected therefrom under a judgment, order, or decree of acompetent Court, and all disturbance of such possession, other-wise than by a judgment, order, or decree of a competent Court,is prohibited. Similarly, under section 63 (6), the right of asuccessful party can be deprived of only by virtue of a judgmentof a competent Court, and all disturbance or interference withthe exercise of such right is prohibited other than by the autho-rity or judgment of a competent Court. “ Injunctions are notgranted directing something to be done, but that somethingshould not be done.”—Thamotherampillai v. Arumugam (29N.L.R. 406 at 409 & 10). A Court has no power (by way of aninterim injunction) to remove a defendant who is already inpossession of the subject matter of the action on the strength ofan order made by a Magistrate under section 63 and to place theplaintiff in possession pending the result of the action.—videPounds v. Ganegama (40 N.L.R. 73). The eviction referred to insection 63(2) and deprivation of the right referred to in section63(6) cannot be achieved by any interim injunction or by anyother interim order emanating from a civil Court. The ordermade under section 63 endures until it is superseded by a finalorder or judgment of a competent Court.
The inquiry under section 62 is directed to the determina-tion as to wno was in actual possession of the land or part indispute on the date of the issue of the notice under section 62(1),irrespective of the rights of the parties or their title to thesaid land or part. The Magistrate, acting under section 62, isnot deciding the rights of parties. The proviso to section 63(7)postulates the determination being made without reference tothe merits of the claims of the persons to the possession of theland or part in dispute. The Magistrate is concerned only withfinding who was in actual possession on that date and withmaintaining the status quo. On his reaching that finding, hemay, unless the facts fall within the provisions of section
288
SHARVANANDA, J-'—Kanagasabai v. Mylvaganam
63(3), make an order under section 63(2) declaring the personsso found to be in possession on the date of the notice to beentitled to possession of the land. Such an order should bebased on his prior determination in terms of section 63(1). Theprovisions of section 63(3) and (4) apply to a case where, thoughone party is found to have been in possession of the land orpart in dispute on the date of the issue of the notice some otherparty who is found to have been in possession of the land orpart in dispute had been forcibly dispossessed within a periodof two months immediately before the date of issue of thenotice under section 62(1); in which event, the party so foundto have been forcibly dispossessed may be ordered to berestored to possession of the land or part in dispute. The partyin possession on the relevant date, but who had come into suchpossession by forcibly dispossessing the other party, may provethat such dispossession took place more than two months nextpreceding the date of the notice, and in that case the Magis-trate cannot make an order under section 63(4). On the otherhand, if he is satisfied that forcible dispossession had takeliplace within the said two months, he may make an order undersection 63(4) directing the party so dispossessed to be restoredto possession in terms of section 63(4).
Counsel for the respondent submitted that a report of thePolice is not sufficient to justify the Magistrate taking proceed-ings under section 62. It is essential for the assumption ofjurisdiction under section 62 that the Magistrate should havereason to believe from a Police report or other information thata dispute relating to land, which is likely to cause a breach ofthe peace, exists. The report or other information shouldcontain sufficient material to enable the Magistrate to form thebelief that the dispute is likely to cause a breach of the peace.The jurisdiction conferred on a Magistrate to institute aninquiry under this section can be exercised only when thedispute is such that it is likely to cause a breach of the peace.It is the apprehension of a breach of the peace, and not anyinfringement of private rights or dispossession of any of theparties, which determines the jurisdiction of the Magistrate.It is sufficient for a Magistrate to exercise the powers underthis section if he is satisfied on the material on record thatthere is a present fear that there will be a breach of the peacestemming from the dispute unless proceedings are taken underthe section. Power is conferred by section 62 in subjectiveterms—the Magistrate, being the competent authority, isentitled to act when he has reason to believe that the existenceof a dispute affecting land is likely to cause a breach of thepeace. The condition precedent to the exercise of the power isthe formation of such opinion—the factual basis of the opinion
SHARVAN'AN.DA, J.—■Kanagasabai v. Mylvaganam
287
being the information furnished by any Police officer or other-wise. A Magistrate is not bound to take action on a Policereport or upon an expression of opinion by the Police. But,before he takes action, he should have a statement of factsbefore him so that he may exercise his own judgment in arriv-ing at a conclusion as to the necessity of taking action underthis section. The question whether, upon the material placedbefore him, proceedings should be instituted under this sectionis one entirely within the Magistrate’s discretion. He may formhis opinion on any information received. In my view, he canbase his action on a complaint filed by any of the parties, or ona Police report. The Magistrate should however proceed withgreat caution where theire is no Police report and the onlymaterial before him are statements of interested persons.
Counsel for* the respondent contended that the Magistratehad no jurisdiction to proceed under section 62 as the disputebetween the petitioner and the respondent did not affect ‘land’.According to him, the subject of dispute should be bare landand not a building or any other structure erected on the land.In the present case, the dispute relates to the possession ofbusiness premises in 4th Cross Street, Pettah. Counsel referredto section 62 (4) which reads as follows : —
“ In this section, ‘dispute affecting land’ includes anydispute as to the right to the possession or to the boundariesof any land or part of a land, or as to the right to cultivateany land or part of a land, or as to the right to the cropsor produce of any land or part of a land, or as to any rightin the nature of a servitude affecting the land.”
This is an interpretation clause. The use of the word ‘includes’in significant. Where the word defined is declared to ‘mean’ soand so, the definition is explanatory and prima facie restrictive;where the word defined is stated to ‘include’ so and so, the defi-nition is extensive. “ ‘ Include ’ is very generally used ininterpretation clauses in order to enlarge the meaning of wordsor phrases occurring in the body of the statute, and when itis so used, these words and phrases must be construed ascomprehending not only such things as they signify accordingto their natural import, but also those things which the inter-pretation clause declares that they shall include.”— per LordWatson Dilworth v. Commissioner of Stamps (1899—A.C. 105 &106), An interpretation clause which extends the meaning of aword does not take away its ordinary meaning as understood inour jurisprudence. The expression must be given its ordinarymeaning and, in addition, it must, in relevant cases, be given the
288
SHARVANANDA, J. —Kanagasabai v. Mylvaganam
special meaning which the statute says is to be included. Theordinary meaning must however harmonise with the subjectof the enactment and the object which the legislature has inview. It must fall within the scope and object of the statuteand must not extend to ground foreign to its intention.
Our law does not recognise ownership of a house or buildingapart from the land on which it stands. The building loses itsindependent existence and becomes part of the land on whichit is constructed. The principle of accessio in the case of build-ings is embodied in the maxims, ‘Omne quod inaedifecatursolo solo cedet’ (All that is built on the soil belongs thereto)and ‘Superficies solo cedet’ (Things attached to the earth gowith the immovable property). Thus, land, in its signification,means not only the surface of the ground, but also everythingbuilt on it. Cujus est solum ejus est usque ad caelum (He whopossesses land possesses also that which is above it). On a con-veyance of land, all buildings erected thereon pass with theland, even though there is no specific mention of such buildingsin the deed of transfer. Thus, ‘land’, in our law, includes housesand buildings, and when the legislature employs the term ‘land’in any statute, the word is presumed to include ‘houses andbuildings’, unless there are words to exclude ‘houses andbuildings’. The language of section 62 does not repel suchinclusive meaning. A breach of the peace can ensue from adispute relating to an agricultural land as well as from adispute relating to a house or building. There is no justificationfor restricting or confining the Magistrate’s jurisdiction undersection 62 to a dispute affecting agricultural or pastoral landonly. In my view, the Magistrate’s jurisdiction under section 62extends to disputes affecting business premises and residentialpremises.
Accordingly, in the exercise of this Court’s revisionary powers,I set aside the order of the Magistrate dated 22.6.76 and remitthe case to the Magistrate’s Court with the direction that heshould proceed to act under section 62 and make his orderunder section 63 regardless of the proceedings in D.C. Colombo1745/RE instituted by the respondent Mylwaganam. The Magis-trate should proceed to inquire into the matter expeditiouslyand endeavour to make his order under section 63 within sixweeks of the Registrar, Supreme Court, communicating theorder of this Court. It is hoped that the District Court will stayits hands pending the final order of the Magistrate in thismatter.
The 1st respondent will pay Rs. 420/- to the petitioner ascosts of the application to this Court.
Wanasundera J.—I agree.
Order set aside.