Natesa Thevar and Others vs Executive Magistrate and Tahsildar, Thiruthuraipoondi and Others

K.M. Natarajan, J.—''A'' Party in M.C.3 of 1986 on the file of the Executive Magistrate and Tahsildar, Thiruthuraipoondi, has preferred this petition under S.482, Crl.P.C., to quash the said proceedings against them. The Executive Magistrate and Tahsildar, Thiruthuraipoondi who is arrayed as the first respondent in this petition, has passed a preliminary order under S.145, Crl.P.C., on 25.7.1986 directing both the A and B parties not to enter upon the land at any cost and also directed them to appear before him on 5.8.1986 to put forth their respective claims. The said order is challenged in this petition on the ground that the preliminary order does not show the grounds on which the Magistrate was so satisfied and also the source from which he obtained the information that there is a dispute and that it is likely to cause breach of peace. It is further submitted that it is clear from the said order that there is no existing dispute which may lead to breach of peace and that there is only an apprehension in the mind of the Magistrate that, when the parties may try to enter upon the land in future, it will result in breach of, peace and that such an apprehension cannot form the basis of the order under S.145 of the Code. It is also submitted that the property could be attached under S.146 of the Code only in the case of an emergency or only when the contesting parties are not in possession of the property in dispute. According to the petitioners, the ownership of the property and its possession as seen from the revenue records, stands in the names of petitioners 2 and 3 who are paying kist and that there is no need to attach the disputed property or to appoint a Receiver. In the instant case, the Magistrate not only passed a preliminary order under S.145, Crl.P.C. but also passed another order appointing the Revenue Inspector of Muthupet as Receiver of the property for cutting the coconuts and selling the came in public auction and another order attaching the property under S.146 (1), Crl.P.C. The said order is illegal and improper and it is not in accordance with the said provision without giving an opportunity to the petitioners to prove that they are in possession of the land in dispute as rightful owner and that the attachment and appointment of the Receiver are unnecessary.

It is seen that the subject matter of the, dispute is in respect of the land comprised in R.S.190/1 and the coconut grove therein. The Magistrate has observed in the preliminary order under S.145 (1), Crl.P.C., that he was satisfied that there is a dispute in regard to the possession of the land in question between A and B party and that if any one Of the parties try to enter upon the land, there is likelihood of breach of peace and so he directed both the parties under S.145 (1) Crl.P.C., not to enter upon the land at any cost and directed them to appear before him for enquiry. The said order was attacked on the ground that the Magistrate has not stated, on what basis he was satisfied that there is dispute with regard to the said land and that there is likelihood of breach of peace. It is contended that the ground for arriving at such satisfaction has not been set out and that the said order is liable to be set aside. The Learned Counsel for the petitioners relied on various case laws in support of his contention. Before ever adverting to the decisions, the provisions of S.145 (1) Crl.P.C.� may be quoted. It runs as follows

Whenever an Executive Magistrate is satisfied from a report of a police Officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds on 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 to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.

In Peria Mannadha Gounder v. Marappa Gounder 1968 L.W. Cri. 179 Krishnaswami Reddy, J. held

Under S. 145 (1) Cri. P.C. the Magistrate having jurisdiction shall make an order in writing that he is satisfied either from a police report or other information that a dispute likely to cause a breach of peace exists and state the grounds of his satisfaction before requiring the parties concerned in such dispute to attend his Court and put in written statements. This provision of making the order in writing and stating the grounds of his satisfaction appear to be mandatory. The preliminary order should state clearly the reasons and grounds on which the satisfaction is based and that the magistrate had applied his mind in passing the preliminary order.

In Kulandaisami v. Sherfuddin 1977 L.W.Crl. 187 it has been held by Natarajan J. (as he then was)

It is not every dispute that will attract invocation of S.145, Crl.P.C. by the contesting parties. The dispute must be also attended with a threatened breach of peace. A heading of chapter 10 in which S. 145, Crl.P.C. occurs is ''Maintenance, of public order and tranquility'', the Magistrate is not, therefore, concerned with disputes between two or more number of parties acrimonious, however, they may be, unless there is a likelihood of such a dispute resulting in disturbance of public tranquillity and resultant breach of peace. It is no doubt true that if an order is passed by a Magistrate, in exercise of his powers in favour of one of the contesting parties, the Magistrate should give reasons why he is passing that order.......

Learned Counsel for the petitioners relied on the decision in Ashfafi Lal v. Lath Singh 1981 Cri. L.J. 1172, where it was held

S.145 (1), Crl.P.C. requires that the Magistrate should state the grounds of his satisfaction that a dispute exists concerning any land or water or boundaries thereof which is likely to cause a breach of the peace. Those grounds are (a) a report of a police officer, or (b) other information. He need not state any facts beyond those identifying the property and the parties. Ground means ''foundation or basis'' and the foundation or basis of satisfaction is either the police report or other information.

In Bisse Gowda and Others Vs. State of Mysore and Others, , it was held

A mere statement in the preliminary order made under S. 145 (1) by the Magistrate that he was satisfied from the police report that a dispute is likely to cause breach of peace, is not enough, but he must state the grounds of his being so satisfied which alone entitles him to make such an order. Noncompliance not only renders such preliminary order without jurisdiction but also vitiates the entire subsequent proceedings. Therefore, the mere fact that subsequent final order has been passed, will not have the effect Of rendering the proceedings valid and the final order is liable to be quashed under S.439.

In Gabrial Thanakayyan v. Narayano Nadar 1977 Cri. L.J. 1879 the same view was reiterated and it was held

On a careful reading of S.145 as a whole, particularly sub S. (1) it can be seen that every foundation of an action under the sub-section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction. It is only on being satisfied that there is a real dispute'' existing concerning the possession of immovable property and that such dispute is likely to cause the breach of peace that the Executive Magistrate gets jurisdiction to iaitiate proceedings and pass a preliminary order under S.145 of the Code. This satisfaction he or side may get from a report of the police officer or upon other information. The Magistrate must be satisfied of the necessity to take, action under S.145 of the Code, before a preliminary order is passed and it cannot be said, that is every case such satisfaction would automatically follow from a report of the police officer or upon other information. The provision in the Sub-section that the Magistrate shall make an order in waiting, stating the grounds of his satisfaction is mandatory. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order. Peria Mannadha Goundar and Others Vs. Marappa Goundar, , relief on.

Applying the ratio laid, down in the above decisions to the facts of this case it has to be observed that the Magistrate in this case, except stating that he was satisfied that there is dispute in regard to possession of the land in question between both the, parties and if any one, of the parties try to enter the land, there is likelihood of breach of peace lie has not stated the grounds of his satisfaction or foe spurge of information he received either from the police or from the party for passing such a preliminary order. These decisions clearly lay down that the preliminary order should state cleary the reasons and grounds on which the satisfaction is based and that the Magistrate has applied his mind in passing the preliminary order and the same is mandatory. Non-compliance with the said provision certainly vitiates the said order as it is one which is passed without jurisdiction. Hence the subsequent final order will not have the effect of rendering the proceedings valid. Hence, I am of the view that the said preliminary order is not valid as it is not the one passed in consonance with the provision of S.145, Crl.P.C. and as such it is liable to be quashed.

The Learned Counsel for the respondents relied on the decision reported in Sukumar v. State of Mysore 1972 M.L.J. Cri. 319 in support of his contention. In the above quoted case, the Magistrate has expressed his satisfaction on the basis of facts set out in the First Information Report and the police report that were before him. Hence it was observed that as stated in the Supreme Court in R.H. Bhtani v. M.T. Desai AIR 1966 S.C. 144, those facts were prima facie sufficient and were the reasons leading to his satisfaction and that since these were materials before him, there is no justification to think that he passed the impugned orders lightly or mechanically without being satisfied as to the existence of the conditions required by that section. But, in the instant case, there is absolutely no reference at all about any such first information report or other information for arriving at the satisfaction and passing order. Hence that decision is not helpful to the facts of this case. Then, the Learned Counsel for the respondents relied on the decision reported in Saminatha Pillai v. Raghavachariar 1946 M.W.N. Cri. 137. That was also a case where there were materials before the Magistrate, namely materials furnished by the petition itself, to indicate that a breach of the peace was likely. In the circumstances, it was held that the preliminary order passed cannot be said to be invalid. The above decision also is not helpful to the case of the respondents. In view of the latest decisions of this Court, which have clearly laid down that it is obligatory on the part of the magistrate to state the grounds of his satisfaction and the source of information, the facts which were placed before him are absolutely necessary for passing such a preliminary order. The Learned Counsel for the respondents also cited the decision reported in Munshi Ram Vs. R.G. Anand and Another, of the Delhi High Court. In that case, it has been held

Order passed under Sub-sec.(1) without specifically stating the reasons for apprehending breach of the peace is not necessarily illegal. In such case, the Court has to see whether the illegality is curable under S.537 of the Code.

As already stated, as it is the consistent view taken by this Court in favour of the petitioners herein, no reliance could be placed on the ratio laid down in the above quoted decision of the Delhi High Court. Hence, I see no force in the contention of the Learned Counsel for the respondents. Since I have taken the view that the preliminary order itself is invalid and consequently the subsequent orders passed in pursuance of the same will not have the effect of rendering the proceedings valid, the final order passed is liable to be quashed. It is needless to go into the order passed under S.146(1) and 145(8) of the Code, appointing a Receiver and attaching the property. Even while passing the said order, it is to be noted, the Magistrate has not followed the procedure. He has passed the said order on the very same day when the preliminary order was passed, i.e., on 25-7-1986. It is also brought to my notice that under S. 145(1), Crl. P.C., the magistrate is not empowered to permit both the parties not to enter upon the land at any cost and such a direction is illegal and without jurisdiction. I find much force in the said contention as there is nothing empowering the magistrate under S.145, Crl. P.C. to pass such an order. There is also nothing empowering the magistrate to pass the subsequent order on the same day under S. 145 (2) of the Code appointing the Revenue Inspector as Receiver and attaching the property under S. 146 (1) on the ground that he is unable to arrive at a finding as to who among the parties was in possession, in order to protect the coconuts therein. As rightly contended by the Learned Counsel for the petitioners, the Magistrate without holding an enquiry is thoroughly wrong in observing that he is unable to decide as to who was in possession. Further, a Receiver can be appointed under S.146 (2), after attaching the property under S.146 (1) and that an order under S. 146 can be passed only if the Magistrate at any time after making the order under Sub-See (1) of S. 145, considers the case to be one of emergency, or if he decides that none of the parties was then in such possession of the property as is required to in S. 145 or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute and he may attach the subject of dispute until a competent court has determined the rights of the parties thereto. In this case, the Magistrate, according to the Learned Counsel for the petitioners, has not complied with the provisions of S.145 and 146 of the Code, while appointing the Receiver and attaching the property.

In this connection the Learned Counsel for the respondents drew my attention to the decision reported in Mathuralal v. Rawanlal AIR 1960 S.C. 242 where it was held

There is no express stipulation in S.146 that the jurisdiction of the Magistrate ends with the attachment. Nor is it implied, Far from it the obligation to proceed with the enquiry as prescribed by S. 145 sub-S.(4) is against any such implication... We mentioned a little earlier that the only provision for stopping the proceedings and cancelling the preliminary order is to be found in S. 145 (5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace. An emergency is the basis of attachment under the first limb of S. 146 (1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace.

Here, it is not clearly stated that there was an emergency to pass such an order, it is only alleged that the Magistrate is unable to decide as to who was in possession and that the contents have to be preserved. In the instant case, in view of the finding that the very foundation of the preliminary order itself is not valid and that the order is vitiated, the subsequent orders passed under Ss.145(8) and 146(1) are also liable to be quashed on the ground that they are not valid. For all these reasons, I am of the view that the proceedings in M.C.3 of 1986 on the file of the Executor Magistrate and Tahsildar, Thiruthuraipoondi is liable to be quashed and is hereby quashed. The petition is allowed. However, it is open to the Magistrate to initiate such proceedings if circumstances warrant, after following the procedure laid down under sections 145 and 146 of the Code of Criminal Procedure and in the light of the observations in the order.