Edla Anjaiah and Others vs Purumalla Mallesham and Another

The learned Counsel on both sides requested the Court to dispose of the matter finally and addressed arguments.

The facts in giving rise to the filing of these petitions are, briefly, as follows :-

Edla Mallesham and Edla Anjaiah are residents of Sitarampur village. It is alleged that there is a well in Sy. No. 70/B situated at Sitarampur and it is owned by both of them and utilising the water for raising crops in their lands. It is further alleged that Edla Anjaiah and others are not allowing Edla Mallesham to draw water from the said land through pipelines to irrigate his field in Sy. No. 70/B to an extent of Ac. 1-16 cents and he filed a petition before the Mandal Revenue Officer, Karimnagar, and he passed an order u/s 145, Cr. P.C. on 21-3-97 stating that it appears to him that dispute is likely to cause breach of peace due to stoppage of water passing through the pipelines to the land of Edla Mallesham in sy. No. 70/B and he has got a right to take water through the said pipelines and directing them to explain reasons as to why such stopping of water should not be removed and to submit the explanation within fifteen days from the date of the issuance of notice. The petitioners Edla Anjaiah and others filed a revision before the Sessions Judge, Karimnagar in Crl. Register CF No. 1350/1997 and the learned 1st Additional Sessions Judge, Karimnagar dismissed the said revision at the admission stage holding that it is an interlocutory order and no revision is maintainable u/s 397(2), Cr. P.C.

The petitioner filed a Criminal Petition No. 1888/97 u/s 482, Cr. P.C. to quash the said order.

The Mandal Executive Magistrate passed final orders on 29-5-97 holding that Edla Mallesham is taking water from the joint well through the pipelines for the last thirty years and the petitioners herein should not stop the usage of water to irrigate the land in Sy. No. 70/B by him.

The petitioners herein filed revision against the said order in Crl. R.C. No. 457 of 1997.

The said two petitions relate to one subject-matter and hence, are being disposed of by a common order.

The learned Counsel for the petitioners submitted that the Mandal officer has passed an order under guise of exercising powers u/s 145, Cr. P.C. by issuing show cause notice without specifying the date, time and place to appear and to put in written statement in respect of their claims and further submitted that the Mandal Revenue Officer has no jurisdiction either to pass interim orders or final orders and only Executive Magistrate can exercise jurisdiction under Sections 145 and 147, Cr. P.C. He further submitted that Section 145, Cr. P.C. is not applicable to the facts and circumstances of the case and it is only Section 147, Cr. P.C. that can be invoked.

The learned Counsel for the respondent did not dispute with regard to the first contention of the petitioner counsel that the Mandal Revenue Officer has no jurisdiction to pass orders u/s 145 or 147, Cr. P.C. It is only the Mandal Executive Magistrate that can exercise the powers contemplated u/s 145 or 147, Cr. P.C. and the Mandal Revenue Officer in such capacity cannot invoke and issue proceedings either u/S, 145 or 147, Cr. P.C. The interim order dt. 21-3-1997 were issued by the Mandal Revenue Officer but not Mandal Executive Magistrate and hence, bad in law.

The second contention urged by the petitioner-counsel is that no date and time and place is mentioned in the show cause notice directing the petitioners to appear and submit their written statements, as such the said order is not in compliance with the provisions Of Section 145 or 147, Cr. P.C.

A perusal of Section 145, Cr. P.C. clearly shows that whenever the Executive Magistrate is satisfied from a report of Police Officer or upon other information that a dispute likely to cause breach of peace exists concerning any land or water or the boundaries thereof, within his limits or local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time and put in written statements of their respective claims as respects the fact of actual possession of the subject of the dispute. But in the show cause notice dt. 21-3-97, it is mentioned that the respondents are directed to submit their explanation within fifteen days from the date of issuance of notice and thus the date and time are not mentioned on which they have to appear and submit their written statements and thus the said notice is not in accordance with Section 145, Cr. P.C. and it suffers due to lack of details with regard to the date and time as contemplated u/S. 145, Cr. P.C. and hence, the said notice is liable to be quashed on that ground alone.

The third point raised by the petitioner is that the relevant provision applicable to the facts and circumstances of the case is Section 147 and not Section 145, Cr. P.C.

It is clear from the facts and circumstances of the case referred supra, that the dispute in this case relate to the taking of water from the well, but not with regard to the right of possession of land and the relevant provision of law is only Section 147, Cr. P.C. but not Section 145, Cr. P.C. There is a clear distinction between Section 145 and 147, Cr. P.C. The former concerns with the dispute relating to the possession and the Magistrate is concerned with the actual possession of the property at the relevant point of time and the apprehension of breach of peace. But Section 147, Cr. P.C. relates to the dispute about the right to use of land or water, unlike right to he in possession about which Section 145, Cr. P.C. speaks.

Edla Mallesham approached the Mandal Executive Magistrate complaining that Edla Rajaiah and others are not allowing him to draw water from the well to irrigate the land and thus the dispute is only with regard to the usage of water from the joint well and there is no dispute with regard to the possession of the land and hence, the facts of the case squarely falls within the ambit of Section 147, Cr. P.C. but not u/S. 145, Cr. P.C. and the Mandal Executive Magistrate committed an error in exercising the powers u/S. 145, Cr. P.C. instead of Section 147, Cr. P.C.

The other point raised by the petitioner-counsel is that they submitted a representation dt. 17-5-97 to the Mandal Revenue Officer stating that they filed revision against the show cause notice questioning his jurisdiction and requesting him to postpone the proceedings as they filed revision before Sessions Judge, but the same was not considered while passing the final orders. On the other hand, it is mentioned in the final orders that no counter or any representation is submitted up to 27-5-97 and it is factually incorrect and he filed Xerox copy of the representation said to have been received in the office of the Mandal Executive Magistrate.

It is difficult to say one way or the other about submission or representation to the Mandal Executive Magistrate, as it is a question of fact to be decided after adducing evidence. In view of the foregoing discussion, this contention does not assume much importance, as already held that the Mandal Revenue Officer has no jurisdiction to pass orders u/S. 145, Cr. P.C.; the show cause notice does not contain details as contemplated u/S. 145, Cr. P.C. and the relevant provision is Section 147 and not 145, Cr. P.C., when the show cause notice as contemplated u/S. 145(1), Cr. P.C. is not in compliance with the said provision, passing of the final orders basing on the show cause notice is not valid under law and liable to be set aside. Therefore, in the light of the foregoing discussion, I have no hesitation in holding that the show cause notice dt. 21-3-1997 and the final orders dt. 29-5-97 are unsustainable in law and accordingly set aside.

However, the Executive Magistrate is at liberty to take steps afresh, if there are circumstances still exists warranting to invoke Section 147, Cr. P.C.

In the result, the Criminal Petition No. 1888/97 and the Crl. R.C. No. 457/1997 are allowed.

Petition allowed.