SHAFIUR RAHMAN, J.--This appeal by special leave is directed against an order of the Lahore High Court, dated 7-2-1973, rejecting a reference received from the Sessions Judge against an order passed by a Magistrate 1st Class on 28-10-1970 in proceeding under section 145, Cr.P.C.
2. The facts of the case in brief, are that the appellant purchased in auction a plot measuring nine Marlas and 183 sqr. Ft. Khasra No. 8565 Uttam Nagar, Nawan Kot, Multan Road, Lahore. He obtained P.T.D. On 7-8-1962. After serving statutory notice on the occupants the appellant approached the Rent Controller with an application seeking their ejectment. An order was passed by the Rent Controller on 6-9-1965 which was maintained on appeal by the Addl. District Judge on 9-2-1968 and by the High Court in Second appeal on 26-6-1968. In execution of the order of ejectment the respondents were dispossessed from the plot and its possession handed over to the appellant Thereafter the appellant was dispossessed forcibly by the respondents whereupon he instituted proceedings under section 145, Cr.P.C. The Magistrate, in the first instance, attached the property and proceeded to decide the question of possession and its restoration. The Magistrate held that in execution of the decree possession had been obtained by the appellants and that he had been forcibly dispossessed and within to months of his dispossession he had moved the Magistrate for restoration of the possession and on that account was to be treated as one in possession for purposes of subsection (4) of section 145, Cr.P.C. However instead of directing restoration of possession the Magistrate gave a direction to the parties "to seek remedy in the Court of competent jurisdiction so far as title is concerned." The appellant filed a revision petition before the Sessions Judge who reported the case to the High Court ex parte against the respondents with a recommendation that the revision be accepted and the possession of the plot in dispute be ordered to be restored to the appellant. In the meantime, the matter with regard to the transfer of the plot in dispute was considered in a constitutional petition filed by the respondents which succeeded and the appellant also failed in letters Patent Appeal. The learned Judge in the High Court seized of the reference from the Session Judge relying on the decision of Shah Muhammad v.
Haq Nawaz and another PLD 1970 SC 170 and Shriram v. Samirmal A I It 1928 Nag. 284 held that no help could be provided to the appellant and the reference was rejected.
3. Leave was granted in the case on 27-7-1973 to examine "whether Tire Magistrate was not under a statutory duty under subsection (6) ibid to order delivery of possession of the plot to the petitioner, regardless any defect in the petitioner's title."
4. This case involved the construction of sections 145 and 146, C . P. C . In particular, the interpretation of first proviso to subsection (4) and subsection (6) of section 145, Cr.P.C. These provisions are reproduced hereunder in extenso: "145. Procedure where dispute concerning land etc., is likely to cause breach of peace.-- (1)
Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a the to be fixed by such Magistrate, 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 building, 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 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 the dispute.
(4)Inquiry as to possession.--The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, persue the statements so put in, hear the parties, receive all such evidence as may be produced by them, respectively, consider the effect of such evidence, 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 beforementioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within to months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such dates: Provided also, that if the Magistrate considers the case one of emergency, he may at any the attach the subject of dispute pending his decision under this section.
(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 subsection (1) shall be final.
(6)Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to subsection (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 therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4) may restore to possession the party forcibly and wrongfully dispossessed.
(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, if any question arises as to who the legal representative of a deceased party for the purpose 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 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 summon 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 powers of the Magistrate to proceed under section 107.
"146. Power to attach subject of dispute;-(1) If the Magistrate decides that none o the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof: Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any the if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(2)When the Magistrate attaches the subject of dispute, he may if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any civil Court appoint a receiver, thereof, who, subject to the control of the Magistrate shall have all powers of a receiver appointed under the Code of Civil Procedure, 1908: Provided that in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged.
5. Subsection (4) of section 145, Cr.P.C. Requires of the Magistrate. Where the jurisdictional requirements of the case are satisfied, to decide "any and which of the parties was at the date of the order" in possession of the property. He has been expressly precluded from examining the "merits of the claims of any such parties to a right to possess the subject of dispute." The first proviso has a deeming effect in so far, as it empowers the Magistrate to determine whether any party has been forcibly and wrongfully dispossessed within to months before the date of the preliminary order and if so he could treat the party as dispossessed as if it had been in possession on such date.
6. In the case before us the Magistrate performed this duty completely, and it appears affording no grievance to any of the parties It was held that in execution of the Rent Controller's order of ejectment the appellant had been put in possession of the plot in dispute and further that he had been forcibly and wrongfully dispossessed by the contesting respondent within to months before the passing of the preliminary order.
7. Subsection (6) of section 145, Cr.P.C. Provides further what the Magistrate is required to do when such finding under subsection (4) has been recorded. He is required to make "an order declaring such party to be entitled to possession thereof unitll evicted therefrom in due course of law and forbidding all disturbances of such possession until such eviction". This declaratory order is issued in Form XXII, Schedule V of the Criminal Procedure Code. If the party is not found in actual possession but is deemed to be in possession under first proviso to subsection (4) of section 145, Cr.P.C. Such a declaration would be unsuited, being not a complete relief, and would appear to be incongruous. Hence while introducing this proviso by Code of Criminal Procedure (Amendment Act) 1923, the consequential provision was made by empowering the Magistrate further to restore possession to the party forcibly and wrongfully dispossessed, and held under the provisos to be in possession though in fact not in possession of it.
8. Subsection (1) of section 146, Cr.P.C. Provides for the course the Magistrate has to adopt when a positive finding as is required under subsection (4) of section 145, Cr.P.C. Has not been or could not be ordered. It comes into play when "the Magistrate decided that none of the parties was then in such possession" or is "unable to satisfy himself as to which of them was then in such possession."
In that case and then alone the parties can be referred to competent Court for determination of the rights.
9. It at once become clear from this analysis of the statutory, provisions that the jurisdictional requirements for proceedings are the (i) existence of a dispute, (ii) likely to cause breach of peace, (i.e) concerning land or water or the boundaries thereof, and (iv) within the territorial limits of the Magistrate in determining the rights, in resolving the dispute, in dealing with the matter the Magistrate is precluded from examining the title proprietary as well as possessory, and is required to confine his enquiry to the fact of actual possession or wrongful and forcible dispossession within to months before the making of a preliminary order. In the matter of relief the three courses open to him are of (i) making a declaration of possession of a party and prohibiting with, (ii) restoring possession where the party wrongfully and forcibly dispossessed is found under the deeming clause to be in possession, and (i.e) referring the parties to a Court of competent jurisdiction after attaching the property and this only if (a) none of the parties is found in possession of (b) the Magistrate is unable to satisfy himself as to which of the parties was at the relevant the in possession.
10. Applying this law to the facts of the case one finds that the plot in question was attached by the Magistrate apprehending breach of peace, while determining the points in issue and in granting the relief the Magistrate held as follows:- "The evidence produced by the applicant and the copies of judgments produced by him in support of his contention is ample proof in support of the claim of the petitioner. So far as the ejectment of the respondents is concerned, the statement of the bailiff who alongwith the local police delivered the possession cannot be ignored. Since, the petitioner moved the Courts within to months of his dispossession i.e. On 17-4-1951 therefore in the light of all the evidence Produced by the petitioner, I treat him to be in the possession of the plot in dispute though at present he is dispossessed. The parties are hereby directed to seek remedy in the Court of competent jurisdiction so far as title is concerned."
The consequential order of restoration of possession which should have followed as a matter of course was not passed and the parties were referred to civil Court where the parties had already gone. The Additional Sessions Judge reported the case ex parte to High Court with recommendation that in view of subsection (6) of section 145, Cr.P.C. The order of restoration of possession should have been passed. The learned Judge in the High Court rejected the recommendation on the ground appearing in the following observations:- "There seems to be considerable force in the submissions made, for in the first place the petitioner's title is under cloud and secondly apprehension of breach of peace could be dealt with under section 107/151, Cr.P.C. The title of the petitioner having disappeared the Magistrate rightly refrained from passing any order as to its possession I am conscious of the fact which has been vehemently argued by the learned counsel for the petitioner that the respondents have taken over possession of the plot, forcibly after the possession was delivered in pusuance of the execution of a decree of the Court. But there is equally serious allegation that the ejectment proceedings in execution of the decree was a transaction I do not go into this question. In Shriram v. Samirmal AIR 1928 Nag. 284 that even a trespasser is entitled to have his actual possession maintained if it is peaceful. In view of the judgment of the Supreme Court and the view expressed by Negpur High Court. I am afraid I cannot come to the rescue of the petitioner".
11. In the first place when the Magistrate passed the order under challenge on 28-10-1970 the title unquestionably vested in the appellant. The decision against him was given in the Constitutional petition on 10th January, 1972. It is, therefore, an incorrect observation to make that, "the title of the petitioner having the Magistrate rightly refrained from passing any order as to its possession".
Secondly, title, proprietary or possessory, is one factor which a Magistrate is precluded in proceedings under section 145, Cr.P.C. From examining or making a basis for the order under subsection (6) of section 145, Cr.P.C. Or subsection (1) of section 146, Cr.P.C. Thirdly, the decision in Shriram's case was of help to the appellant and not to the respondents. He had fought out in the Rent Controller's forum followed by litigation in civil Court, followed by delivery of possession in execution of an order competently made. Against such a person protection was afforded on an extraneous ground of title to a party which had wrongfully and forcibly dispossessed the appellant.
His forcible and wrongful possession could not be "termed peaceful". The decision of this Court in Shah Muhammad's case had san altogether different context, the law laid down being what follows:- "The conclusion we have reached thus is that a case in which a civil Court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C."
There was an order of the civil Court dealing with possessory rights and hence displacement of the jurisdiction of the Magistrate could not at all take place. Finally, the remedy under section 107/151 Cr.P.C. Is no substitute in a case where the jurisdictional requirements of section 145, Cr.P.C. Are fully satisfied for to hold otherwise would render nugatory a salutary legislative provision relating to possession over immovable property disputes arising in respect of it and possessory interest in it.
12. In the case of Mating Khan v. Maung P.O. Tok AIR 1939 Rang. 388 the facts were some what similar and it was held that "in the face of the decree of the civil Court in favour of the applicant and his wife, the order of the Sub-Divisional Magistrate referring the parties to the civil Court for the determination of their rights under section 145 (1) is highly improper. So far as the land is concerned it is bound to think that the parties should again fight out in a civil Court the question as to who is entitled to the possession o the land which the civil Court has not only decreed in favour of the a licant and his wife but which the civil Court had already enforced by the execution o its delivery o warrant when a decree is inter parties it is immaterial whether the delivery of possession made under that decree is actual or merely symbolisal Sec. C.W.PN. 267 in which it was laid down that in a proceeding between the parties to a civil decree under section 145, Cr.P.C. The Magistrate could not go behind the decision of the civil Court in the matter and could not ignore the decree even though the Court passing the decree had no jurisdiction over the land and it was immaterial that the delivery of possession was symbolical only. Therefore in the enquiry under section 145, there was only one conclusion possible for the learned Sub-Divisional Magistrate to arrive at with reference to the land, that is, that it was in the possession of the applicant on the date of the order passed under subsection (1). Even assuming that the applicant had been forcibly dispossessed at any the after the execution of the delivery order of the Sub-Divisional Court the first proviso to subsection
(4) will operate in favour of the applicant as such dispossession must have taken place within to months next before the date of the order under subsection (1). I hold, therefore, that as regards the land the learned Sub-Divisional Magistrate's order is contrary to all principles of justice."
13. The specific legal question required to be examined in this appeal is whether the Magistrate was not under a statutory duty under subsection (6) of section 145, Cr.P.C. To order delivery of possession of the plot to the appellant. The expression "may restore to possession the party forcibly and wrongfully dispossessed" is prima facie enabling and permissive empowering the Magistrate to pass an order restoring possession. It has been said that "may" can never mean "must". So long as English language retains its meaning but it gives a power and that may be a question in what cases were a Judge has a power given by the word "may" it because his duty to exercise that power. The leading case on the point is of Frederic Guilder Julius v. The Right Rev. The Lord Bishop of Oxford Law Reports Appeal Cases Vol. V . Page 214 in which it was observed that: - "They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the condition under which it is to be done, something in 'the title of the person or persons for whose benefit the power is to exercise which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."
In the case of MacDougall v. Paterson (II C. 8. 755) also it was held that: "When a statute confers an authority to do a judicial at in a certain case, it is imperative on those so authorised to exercise the authority, when the case arises and its exercise is duly applied for by a party interested and having the right to make the application."
In re: Nunth and Bracon Railway Company (Law Reports Chancery Appeals Vol. IX page 263) interpreting the permissive and enabling words, where relief to a party on conditions fully satisfied was concerned it was held that "that is the usual courtesy of the Legislature in dealing with the judicature. "It shall be lawful" means in substance, that it shall not be lawful to do otherwise."
Crowford (Construction of Statutes 1940 Edition) brings out the distinction in para. 267 as follows:- "If a Court, has discretion as to whether it shall at or not, a statute cannot compel it to at, even though the word "must" is used. Similarly, if it has a discretion as to what relief it may grant some particular relief, other words, as far as any matter involving the exercise of judicial judgment or discretion is concerned, mandatory words or language will usually be regarded as merely directory. Tohold otherwise, would be to destroy, judicial discretion, and permit the Legislature to invade the field of the judiciary.
But this does not mean that mandatory words must always be considered discretionary or directory. Under some circumstances, they will be construed, to have their natural and ordinary imperative meaning. For instance, if a statute provides that litigant is entitled to certain relief, if certain facts are proved, such relief must be awarded him upon the proof of such facts. Indeed, if he is entitled to specified relief upon the proof of certain facts, permissive words may be construed as mandatory."
14. Apparently a different view seems to have been taken in the case of Khudiram Mandal v.
Jitendra Nath and another AIR 1952 Cal. 713 Jitendra was found to be in possession under proviso to subsection (4) but the order passed under subsection (6) was one of mere declaration of his possession, without ordering restoration of possession. Jitandra applied separately and subsequently for restoration of possession which application was, at one stage, filed in view of a pending revision before Sessions Judge by the opposite party. When that was dismissed, Jitendra made a second application for restoration of possession before the succeeding Magistrate.
Notwithstanding the pendency of a civil suit with regard to the same property, notwithstanding notice to Jitendra why an interim injunction should not be issued against him by the civil Court and information of it officially given to the succeeding Magistrate, the latter proceeded to direct restoration of possession followed by interim injunction by the civil Court against Jitendra. Such a conflict of jurisdictions was ultimately taken to the High Court, one of the contentions being that the Magistrate was not obliged to pass an order of restoration and where he did not pass one he became functus officio and after granting the declaration. The High Court follows:- "The fact that the section only provides that the Magistrate 'may' restore him to possession, clearly suggests that the Legislature considered that the need for making an order for restoration of possession would depend upon the exigencies of each particular case and that it might not always be necessary, after a declaratory order had been made in favour of a dispossessed person, to restore him actually to possession. The dispossessor might voluntarily quit the land, as defendant in suit for possession some the do after the decree. If he did not, an order for restoration of possession might then be made. It may be recalled here that although the first proviso to section 145(4) has always been a part of the section since 1898 the second part of S. 145(6) was not added till the amendment of 1923. Even before, 1923, final orders in only a declaratory form were made in favour of dispossessed person and it cannot be said that they were always ineffective. Difficulties must have been experienced which occasioned the amendment, but when the Legislature interened, it enacted a provision not in an absolute but in an optional form and thus, to my mind, gave sufficient indication that an order for possession might be, made if and when required, and necessarily by the same order whereby the right to possession is declared.
" The finding ultimately, was that the Magistrate did not become functus officio after making the required declaration and even the succeeding Magistrate could grant the relief of restoration of possession. As regards the omission of the Magistrate initially to pass such an order it was ordered that 'it is not easy to understand why it should be presumed that the Magistrate, after holding that Jitendra had been wrongfully dispossessed with to months and that he was entitled to possession yet declined to give effect to his finding and make a consequent order that possession must be restored to him. The order of 22-2-1951 shows nothing more than an omission to give certain further direction which the statute did not imperatively require the Magistrate to give at the the.
By holding that jurisdiction was retained by the Magistrate till an order of restoration of possession was passed where the other requirements of the Law were satisfied, itself suggests that such an order was a necessary adjunct of the proceeding and without it the proceedings did not finally come to an end and the Magistrate could not become functus officio losing seisin of the matter.
15. In the case before us the jurisdictional requirements for referring the dispute to the competent Court for determination under subsection (1) of section 146, Cr.P.C. Did dot at all exist and such an order amounted to refusal to pass an order of restoration on an entire extraneous consideration.
Our conclusion therefore is that the order passed by the Magistrate in so far as it referred the parties to compete Court for determination of their title was manifestly against law. The refusal of the High Court to correct this mistake on an extraneous ground of determination of title in a Constitutional petition amounted an illegality. The word 'may, in subsection (6) of section 145, Cr.P.C has a compulsive effect in a situation where the party has established its entitlement to the relief of restoration of possession. We allow the appeal with costs and direct that the appellant shall be restored the possession of the plot in substitution of reference to the competent Court as ordered by the Magistrate and upheld by the High Court.