Revisional Courts Can’t Hand Over Possession in Preventive Disputes: GOA High Court

“Under Section 438 BNSS, you may suspend — but you cannot grant possession-like relief,” ruled the Bombay High Court at Goa, as it struck down an Additional Sessions Judge’s order that allowed two respondents temporary access to a sealed structure during Nagpanchami.

Justice Valmiki Menezes, delivering an oral judgment in Shri Noberto Paulo Sebastiao Fernandes v. Shri Pankaj Vithal Tan Volvoikar & Ors., called the order “beyond the bounds of jurisdiction” and a “patent perversity” in the context of a criminal revision arising from Section 164 BNSS proceedings.

The dispute began when the Sub-Divisional Magistrate at Pernem, on 7 April 2025, found the petitioner to be in possession of a house on Survey No.171/6 at Morjim and restrained the respondents from interference “to maintain public peace and tranquillity.” The respondents filed Criminal Revision No.47 of 2025 before the Sessions Court. While hearing a stay application, the court ordered the premises sealed, with the keys deposited in court custody.

The controversy peaked when, through an application marked Exhibit D-17, the respondents sought to open the structure for religious festivals. The Sessions Court granted limited festival access, directing police supervision. The High Court held this to be a serious overreach.

“The only jurisdiction vested in a revisional court exercising powers under Section 438 of the BNSS at the interim stage was to either grant a stay of the operation of the order impugned before it or to suspend that order. There was no other power to exercise at that stage,” the judge emphasised.

Justice Menezes reminded that Section 164 BNSS proceedings are strictly preventive, aimed at determining actual possession for the sole purpose of avoiding breach of peace, and that they do not decide ownership or tenancy rights. The Sessions Court’s festival-access order, in effect, varied the SDM’s possession finding and put the respondents “temporarily in possession” — something the law did not authorise.

The Court brushed aside arguments about alleged counsel consent, stating firmly that “jurisdictional limits cannot be overcome by consent.” Citing Shalini Shyam Shetty, the Court concluded that the supervisory power under Article 227 of the Constitution had to be exercised here to “keep the subordinate court within the bounds of its authority.”

The impugned order was quashed and the Sessions Court was urged to decide the revision by 20 August 2025, given the law-and-order sensitivity of the matter.

Date of Decision: 25/07/2025