Chenbagalingam and Others vs The Revenue Divisional Officer, Nagercoil Revenue Division and Others

M.M. Sundresh, J.—The petitioners herein have filed the present petition seeking to set aside the order passed by the first respondent dated 25.11.2008, wherein the first respondent in exercise of power u/s 145 of the Code of Criminal Procedure, has passed an order that the fifth respondent has got the title to the property in dispute and therefore, no one should create any law and order problem over the same.

It is seen from the records that there is a dispute between the petitioners on the one hand and the respondents 3 to 5 on the other hand over the property situated in S. No. 674/13 in Kulasekarapuram village, Agastheeswaram Circle, Kanyakumari District.

Apprehending the breach of public peace and tranquillity, the first respondent initiated the proceedings u/s 145(1) of the Code of Criminal Procedure. Following the above said proceedings dated 11.08.2008, a final order was passed u/s 145(2) of the Code of Criminal Procedure on 25.11.2008, holding that the fifth respondent has got the title to the property in dispute and his possession should not be disturbed.

Challenging the same, the petitioners have filed the present petition to quash the said order dated 25.11.2008.

The petitioners have also filed a suit in O.S. No. 214 of 2009 pending on the file of the learned Principal District Munsif, Nagercoil, for declaration and other reliefs.

In the said suit, the petitioners have also filed an application for injunction and the said application is also pending.

The learned Counsel for the petitioners has submitted that a reading of the preliminary order passed by the first respondent on 11.08.2008, does not indicate the application of mind and the satisfaction with respect to the existence of a dispute which is likely to cause a breach of peace. The learned Counsel for the petitioners also submitted that in the final order passed u/s 145(2) of the Code of Criminal Procedure, the first respondent has virtually granted the title to the fifth respondent which he is not competent to do in law. Therefore, the learned Counsel for the petitioners submitted that the impugned order is to be set aside.

In support of his submissions, he also relied upon the judgment of the Division Bench of this Court in M. Krishnamoorthy v. P.M. Neelamegham and Ors. reported in 2004-1-L.W. (Crl.) 22 and the judgment of the learned Single Judge of this Court in K. Rajamanickam v. The Revenue Divisional Officer and Anr. reported in 2009(3) C.L.T. 636 and submitted that the preliminary order u/s 145(1) of the Code of Criminal Procedure should be passed by the Executive Magistrate on his satisfaction that the dispute is likely to cause a breach of peace. It is further submitted that the said satisfaction should be derived from the police report or upon other information. Therefore, the learned Counsel for the petitioners sought for allowing this petition.

Per contra, the learned Counsel for the respondents 3 to 5, submitted that the petitioners through their President has filed a writ petition challenging the very same proceedings. The petitioners have also filed a suit. After exhausting other remedies and after failing to get appropriate reliefs, they have to file the present petition seeking to quash the said proceedings. Therefore, the learned Counsel for the respondents 3 to 5 submitted that there is no bona fide in this petition.

I have heard the submissions of the learned Counsel for the petitioners, the learned Counsel for the respondents 3 to 5 and the learned Government Advocate (Criminal Side) for the respondents 1 and 2.

The proceedings u/s 145 of the Code of Criminal Procedure is only for the purpose of maintaining public peace and tranquillity. In order to initiate the said proceedings, there must be a satisfaction by the first respondent about the existence of the dispute, likelihood of breach of peace in view of the said dispute and satisfaction is based upon the materials for coming to said conclusion.

A reading of the preliminary order passed by the first respondent would disclose that the said order has been passed on a total non-application of mind. The first respondent has not indicated the materials based upon which he has come to the said preliminary conclusion. There is no indication that there is likelihood of breach of peace. When the preliminary order does not satisfy the parameters laid down u/s 145(1) of the Code of Criminal Procedure, then the consequential final order cannot also stand in the eye of law. Further, in the final order passed, the first respondent has gone into the aspects which are not required to be looked into and virtually held the title in favour of the fifth respondent. The proceedings u/s 145 of the Code of Criminal Procedure is contemplated only for maintaining public peace and tranquillity. The order passed by the competent authority is more like an interim order and the said order cannot act like a final order adjudicating the rights of the parties. It is also seen that the order has been passed on 25.11.2008 and thereafter, the parties have approached the civil Court and the dispute is pending before the civil Court.

This Court in M. Krishnamoorthy v. P.M. Neelamegham and Ors. reported in 2004-1-L.W.(Crl.) 22, has held that when the preliminary order passed u/s 145(1) of the Code of Criminal Procedure, does not disclose the satisfaction and has been passed on non-application of mind, the consequential final order cannot stand the scrutiny of law.

It is further to be seen that there is no indication that what was the material based upon which the Executive Magistrate initiated the proceedings and a reading of the order would show that there is no representation about the police report as well.

Hence, on consideration of the above said principles of law, this Court is of the considered opinion that the impugned order dated 25.11.2008 is liable to be set aside.

In the result, this petition is allowed and the order passed in Na.Ka. No. 4538/08/A3 dated 25.11.2008, by the first respondent is set aside. Consequently, the connected Miscellaneous Petitions are closed. As stated earlier, the petitioners have also filed O.S. No. 214 of 2009 which is pending before the learned Principal District Munsif, Nagercoil. It is open to the parties to work out their remedy in the pending civil suit. The learned Principal District Munsif, Nagercoil, is directed to pass appropriate orders on the interim application as well as in the suit without being influenced by the order passed by the first respondent on 25.11.2008 and the order passed by this Court in this petition.