N.S. Nanjudasamy and Another vs N. Venkatachalam and 7 others

Thangamani, J.—On 8.1.1992, the Executive First Class Magistrate and Asst. Collector of Pollachi, passed in M.C. No. 1 of 1992 on his file a preliminary order under S. 145(1) Cr.P.C. stating that he is satisfied that a dispute is existing between ''A'' and ''B'' parties therein over the possession and Management of Arulmigu Nanjudeswarar Temple at Nallatipalayam Village, Pollachi Taluk, that both claim possession, management and conduct of pooja etc., and that they are likely to cause breach of peace and disturbance to public tranquility, and that he thereby directs that both the parties attend his court and file their respective claims over the temple. In the meantime, they were directed to desist from any act leading to breach of peace and that they should not enter upon lands till final orders are passed under the Section. On the same date he passed another order under S. 146 Cr.P.C. directing attachment of the said properties by taking and keeping the possession thereof and to hold the same under attachment until the decree or order of the competent court determines the rights of the parties on the claim to possession.

''A'' party to the proceedings seeks to quash these order in O.P. Nos. 602 and 603 of 1992 respectively, Thiru Gopinath, learned counsel for the quash petitioners submits that the preliminary order cannot be sustained for the reason that the grounds of satisfaction are not reflected thereon. Besides, the direction that both parties should not enter on the land is unsustainable. And since the preliminary order itself is not in order, the subsequent order of attachment under S. 146, Cr.P.C. cannot be sustained.

Let us now examine his contentions. S. 145(1), Cr.P.C. provides that

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 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 to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.

It is seen from the wordings of the Section itself that the Magistrate is required to state in writing the grounds of his satisfaction that a dispute exists concerning any land or water or the boundaries thereof, which is likely to cause a breach of peace. Ground means foundation or basis. The foundation or basis of satisfaction is either the police report or other information. A mere statement in the preliminary order made under S. 145(1) , Cr.P.C. by the Magistrate that he was satisfied from the police report that a dispute likely to cause breach of peace exists is not enough but he must state the grounds of his being so satisfied which alone entitles him to make such an order. Every foundation of an action under Sub-S. (1) of S. 145 , Cr.P.C. is the satisfaction of a Magistrate that a dispute likely to cause breach of peace existed on the date of the preliminary order concerning the possession of any land etc. It is only on being satisfied that there is a real dispute existed concerning the possession of some immovable property and that such dispute is likely to cause breach of peace, the Executive Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order under S. 145 of the Code. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order. The relevant part of the impugned order extracted above discloses that in the present case the Magistrate has only stated that he is satisfied. Evidently, this is a non-speaking order made without application of mind and the express mandatory provisions of S. 145(1) , Cr.P.C. are not complied with. And the non-compliance not only renders such preliminary order without jurisdiction but also vitiates the entire subsequent proceedings.

Learned counsel for the quash petitioners has cited the decision in Natesathevar v. Executive Magistrate, Thiruthuraipoondi & ors. (1987 L.W.Crl. 50) wherein except stating that he was satisfied that there is dispute in regard to the possession of land in question between both the parties and if any one of the parties tries to enter upon the land, there is likelihood of breach of peace, the Magistrate, has not stated his grounds of satisfaction or the sources of information he received either from the police or from the party for passing such a preliminary order. Natarajan, J. has held that the order should state clearly the reason 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 of the said provision certainly vitiates the said order as it is one which is passed without jurisdiction. The ratio laid down in this decision applies to the present case also.

Learned counsel for the quash petitioner next submits that the impugned order is unsustainable also for the reason that there is no power for the Magistrate to pass an order under S. 145(1) , Cr.P.C. to prevent both the parties from entering into the subject matter of the dispute. In support of his contention, he has placed reliance on R.G. Mathi v. Balakrishna Reddiar and 7 others (1990 L.W.Crl. 138). There, the Executive Magistrate initially passed an order in respect of the subject matter of the dispute between the parties, preventing both the parties from entering into possession, until the issue is decided by a competent civil court. Subsequently, he reopened the matter by issuance of notice to the parties concerned and again passed an order. Held, that from a bare perusal of S. 145, Cr.P.C. it is patently clear that it is not legally permissible for the Magistrate to pass an order. Under S. 145, Cr.P.C. preventing both the parties from entering into possession.

In Sundarasamy v. Shanmugham and others (1992 L.W.Crl. 79) in the preliminary order under S. 145(1) Cr.P.C. the Executive Magistrate directed both the parties not to enter upon the disputed premises pending enquiry and until a decision is taken and final orders are pronounced. Arunachalam, J. has held that there is no scope whatsoever under S. 145(1) , Cr.P.C. to direct both the parties to the proceedings not to enter upon the disputed premises. It is therefore seen that the impugned order is not sustainable on this ground also.

Learned counsel for the quash petitioners also submits that since the preliminary order under S. 145(1) , Cr.P.C. is itself not in order, the subsequent order under S. 146 , Cr.P.C. to attach the property, cannot be sustained. We have already seen that the preliminary order, in this case, certainly is not in consonance with the contemplation under S. 145 , Cr.P.C. In other words, the proceedings initiated under S. 145 Cr.P.C. should be held to be a non-est. Therefore, there cannot be a subsequent order, regarding attachment of the properties. In view of the fact that the very foundation of the preliminary order itself is not valid and that order is vitiated, evidently, the subsequent order of attachment passed under S. 146 , Cr.P.C. is also liable to be quashed.

It is also seen from the wordings of S. 146 , Cr.P.C. that power to attach the subject of the dispute arises, only if the Magistrate, at any time, after making the preliminary order under S. 145(1), Cr.P.C. considers the case to be one of emergency. In the impugned order, besides quoting the abovesaid expression of the Section learned Magistrate has stated nothing more. We are not in a position to know what was the nature of emergency and for what material he came to that conclusion. So, on this ground also, the order is not maintainable.

In the result, Crl. O.P. Nos. 602 and 603 of 1992 are allowed and the orders of the Magistrate dt. 8.1.1992 under Ss. 145(1) and 146, Cr.P.C. respectively are hereby quashed.