A Magistrate lacks jurisdiction to pass an order under Section 145(6) of the Criminal Procedure Code when the property in dispute is not in the exclusive possession of either party.

The petitioner, Manohar Hiru Naik Parulekar, and the respondent No. 1. M/s. Agrawal Minerals (Goa) Pvt. Ltd., entered into an agreement dated 29-10-1969 for raising iron ore in a part of the mine "Guelliem Gaval" belonging to the petitioner. The agreement was for the period of 3 years from 1-11-1969 to 30-10-1972. A dispute arose between the petitioner and the respondent No. 1. As the dispute was likely to cause a breach of the peace, the Sub-Divisional Magistrate, Panaji, held proceedings under Section 145 of the Criminal Procedure Code and by his order dated 15-3-1971, decided that the respondent No. 1 was in possession of a part of the mine "Guelliem Gaval". He, therefore, declared that the respondent No. 1 was entitled to possession of the mine until he was evicted from it by due course of law and forbade all disturbance of such possession until such eviction. The petitioner went in revision to the Sessions Judge, who made over the case to the Additional Sessions Judge, sitting at Margao. The Additional Sessions Judge by his detailed judgment running over 28 pages delivered on 12-5-1971, not only dismissed the Revision Application, but went on further to uphold the order of the Sub-Divisional Magistrate. The Petitioner now comes before me in revision.

2. The case of the petitioner is that by the said agreement, he engaged the respondent No. 1 as an ore raising contractor to extract iron ore from the mine in question; that he had his own manager, two clerks and a watchman to look after the working of the mine; that the mine was in his possession and the respondent No. 1 was in the mine only as his worker; and that he was entitled to dismiss the respondent No. 1 from his service and stop his entry into the mine.

3. The case of the respondent No. 1 who was the only respondent the contested the petition, is that under the agreement of 29-10-1969, he was put in possession of the mine for the purpose of extracting ore for the period of 3 years ending on 30-10-1972; and that therefore the petitioner could not oust him from that possession unless by due process of law.

4. It is evident from the case the two parties that both of them claim to be in exclusive possession of the mine.

5. Three points were raised by Shri Dias in the course of his arguments namely :-

(i) that the dispute was not regarding land, but regarding contract;

(ii) that the petitioner and not the respondent was in exclusive possession of the mine; and

(iii) that assuming for argument's sake that the petitioner was not in exclusive possession, the possession of the mine was jointly held by the petitioner and the respondent No. 1.

6. The first point need not detain me for long. The jurisdiction of the Magistrate to issue an order under sub-section (1) and sub-section (4) was challenged before the Sessions Court and this Court. It was decided that the Magistrate did have jurisdiction to entertain the matter. Such decision was not possible unless the dispute was in regard to land and not regarding a contract.

7. Regarding the second point, namely, that the petitioner had the exclusive possession of the mine. I find that the evidence on record is sufficient to prove that it was not so. The contract itself affords evidence to show that the possession of the mine was given to the respondent No. 1 for the period from 1-11-1969 to 30-10-1972, for the purpose of extracting ore. Clause 5 of the agreement dated 29-10-1969 indicates that the contracts could not unilaterally be revoked for the period of 3 years. Under clause 11 the contractor was authorised by the mine owner to use the hutments existing in the mine and also to construct more, at his own cost, in case further accommodation was required for the labourers. There is on record a telegram dated 2-11-1970 sent by the petitioner wherein the petitioner states that the respondent No. 1 is not properly working "your (of the respondents No. 1) part of the mine" and requesting the respondent No. 1 to remove his men