R.M. Murugesan and another vs Prabhakarah and others

Arumugham, J.—Invoking the power of this Court u/s 482 of the Code of Criminal Procedure, Petitioners who are members 2 and 3 of ''A'' party in the proceedings in M.C. No. 3 of 1991, initiated u/s 145 of the Code of Criminal Procedure and pending on the file of the Sub Divisional Magistrate and Revenue Divisional Officer, Gudalur, have filed this petition to call for the records in the above proceedings and quash the same. Interim stay of the above proceedings was granted on 17.7.1991 in Crl.M.P. No. 3749 of 1991. For vacating the interim stay granted by this Court Cr.M. Ps. Nos. 5141 and 5142 of 1991 have been filed. As per the order of the Hon''ble the Acting Chief Justice, since all the petitions above referred are posted before me, by consent of parties, I have proposed to dispose them by rendering a common order after hearing the full arguments.

Brief facts of the case which led to the filing of Crl.O.P. No. 6156 of 1991, are stated as follows:

An extent of 40.14 acres of land comprised in S. No. 251/A situated in Pandanthurai village, Gudalur Taluk in Nilgiris District was owned by Jenmam of Nilambur Kovilagam. It was sub divided into 251/A (to the extent of 38.80 acres); 251/A2 and 251/A3 to an extent of 1.34 acres subsequently. Again S. No. 251/A1 an extent of 38.80 acres has been assigned new S. Nos. 477/4; 477/9 and 477/1 part. In 1950, all the properties above referred were leased out to one M. Bapu by Nilambur Kovilagam on a oral lease. However in March 1951, he has entrusted the property to the first Petitioner herein and the Jenmam of Nilambur Kovilagam recognised the 1st Petitioner as their tenant. The second Petitioner is his son. Jenmam collected the lease amount from the first Petitioner since 1951 to 1969 and have issued receipts for the payment of pattam. Thereafter, no rent was paid in view of the Tamil Nadu Gudalur Jenmam Estates Abolition and Conversion into Rytowari Act (Act 24 of 1969) came into force and in and by virtue of which, the above lands are deemed to be vested with the State Government. In accordance with the said Act 24 of 1969, particularly Section 10 of the same, when a person has been cultivating such land for a continuous period of three agricultural years prior to June 1969 he shall be entitled to the Ryotwari Patta. But however, a person by name Eranhikkal Veerankutty appears to have made claims during 1977 or so but after sometime, he withdrew his claim. But even so, in a suo motu enquiry conducted by the Assistant Settlement Officer (Enquiry), Gudalur under the said Act, he has declared the said land as Forest Poramboke but he has not given any notice to the first Petitioner or any one except to the Jenmi, namely, the Nilambur Kovilagam. In accordance with the provision of the said Act, the first Petitioner is entitled to be served with notice of the suo motu enquiry. Nonetheless, in the appeal preferred before the Director of Survey and Settlement, Madras, challenging the order passed by the Assistant Settlement Officer above referred, the order passed by him was set aside and the matter was remanded for fresh enquiry. Even so, a revision filed by the District Forest Officer, first Respondent of the ''B'' party before Land Commissioner challenging the remand order was however dismissed. As such, the fresh enquiry before the Assistant Settlement Officer, Gudalur, was pending disposal. Pursuant thereto, by a communication dated 9.10.1987, first Petitioner had been advised to put forth his case substantiated by documents with objections if any.

In this back-drop and in the meantime, the then Forest Officials of the Government of Tamil Nadu interfered with the possession and enjoyment of the property in question namely 40.14 acres in old S. No. 251/A (new S. No. 477/9; 477/4 and 477/1 part) Apprehending his dispossession at their hands from the said property, a suit in O.S. No. 25 of 1985 was filed against the Stale of Tamil Nadu represented by the District Collector, Nilgiris District, in the District Munsif Court, Gudalur praying for the perpetual injunction restraining the State of Tamil Nadu, their agent, servants, officials and men from entering into the schedule property and interfering with the peaceful possession of the Petitioner. Since the said suit was not contested, it was decreed in full and accordingly, it is still in force and binding upon the Defendant and their men and servants.

Even after the said decree, since the officials of the Forest Department were trying to interfere with his peaceful possession of the said land, Petitioner sent number of notices to both the District Collector and the Forest Officials Gudalur and that even so Forest Officials caused considerable damage to the property, resulting in lodging of a complaint to the police on 22.12.1990 and notices to the District Collector and the District Forest Officer, reminding them to the decree passed by the court of law.

While being so, Respondents 1 to 6 of the B party, at about 4 p.m. on 11.7.1991 came to the above lands in question, started destroying the tea plantations in an extent of 5 acres and caused damage to the tune of Rs. 5 lakh. Persuasions of all kind yielded no result, including the effort taken by the learned Counsel for the Petitioner, namely, the 9th Respondent herein, but only after the intervention of the Revenue Divisional Officer, who came to the spot, they stopped their unlawful activities. The farm workers of the Petitioner and also the 9th Respondent were attacked and in regard to the same, a complaint was given to the Sub Inspector of Police, by the Petitioner as well as the 9th Respondent.

It appears from the case records that the Inspector of Police, Gudalur, has sent a F.I.R. to the learned Sub Divisional Magistrate and Revenue Divisional Officer, Gudalur, complaining that with regard to Survey No. 477/9 consisting of 11.65 hectares, situated in Padanthorai village, in a dispute with regard to the possession of the same between Petitioners herein along with two more persons by name K. Baby and Kosy baby formed ''A'' party and Forest Officials and Deputy Tahsildar, Flying Squad, Gudalur, numbering in all six persons formed ''B'' party and indulged in violent acts and in connection with that, there was law and order problem and cases in Devershola P.S. Cr. Nos. 28 of 1991 under Ss.147, 148, 332, 324, 307, 309, 379, I.P.C.; Cr. No. 29 of 1991 under Ss.147, 148, 341, 323, IPC; Cr. No. 30 of 1991 under Ss.323, 341, I.P.C. were registered against both parties and further claiming that a tense situation was prevailing among both parties above referred, which according to him, may culminate into a very serious law and order problem causing bloodshed and disturbance in public tranquillity. In the said F.I.R. he has requested the learned Magistrate to issue summons to both parties and direct them to execute an interim bond to maintain peace till the finalisation of the ownership of the land for a period of six months or one year as the court deems fit to fix. This report sent by the Inspector of Police, Gudalur was on 11.7.1991. Learned Sub Divisional Magistrate and Revenue Divisional Officer, Gudalur on receipt of the F.I.R., initiated proceedings in M.C. No. 3 of 1991 on his file u/s 145 of the Code of Criminal Procedure on 11.7.1991 and issued process to both parties accordingly. To appreciate the case in hand, verbatim of the order passed by the learned Magistrate is extracted, which is as follows:

Whereas on perusal of the report of the Petitioner viz., Inspector of Police, Gudalur, I am satisfied that there exists a dispute regarding the possession and enjoyment of the property in S. No. 477/9 of Padanthorai village between ''A'' Party and ''B'' party likely to cause breach of peace. I hereby require you to attend this Court in person or by pleader and to put in a written Statement of your claim in respect of the facts of possession of the above land at my court on 19.7.1991 at 3.00 p.m.

BOUNDARIES OF THE DISPUTED LAND:

North : S. No. 477/1 Pt. of Padamhorai Village.

East : S. No. 477/1 Pt. of Padanthorai village and No. 3 Gudalur Village.

South : S. No. 478/1 of Padanthorai village(main road)

West : No. 2 Devala and 471/5 of Padanthorai village.

REASONS:

It is understood that there is a dispute over possession and enjoyment of 11.65.0. HA of land in S. No. 477/9 of Padanthorai village between ''A'' party and ''B'' party and there is likelihood of breach of peace in the area from the circumstances of the case. I apprehend that imminent breach of peace in the abovesaid area and there is likelihood of clash between the two interested parties resulting in breach of peace.

By passing the above order, process were issued in accordance with the Procedural Law and consequently, learned Magistrate by virtue of the powers vested under Clauses (1) and (2) of Section 146 of the Code of Criminal Procedure, on the same day attached all the standing crops in the disputed land and put them in the custody of the court and directed the Village Administrative Officer of the Padanthorai village of Gudalur Taluk, as the Official Receiver in respect of the said property to exercise the powers and duties conferred u/s 146(2) of the Code and thus, it is seen that by passing the above said order, learned Magistrate has called for both parties to appear before the court on 19.7.1991 and file all documents and materials before the court in respect of their respective cases.

It was at this stage, particularly on 16.7.1991, challenging the very correctness and legal property of the impugned order in question passed by the learned Magistrate, the above petition u/s 482, Code of Criminal Procedure has been filed in this Court, as aforesaid.

From the sworn statement filed in Crl.M.P. Nos. 5141 of 1991 and 5142 of 1991 to vacate the interim stay granted by this Court in Cr.M.P. No. 3749 of 1991 and to vacate the interim direction granted by this Court in Crl.M.P. No. 3979 of 1991, filed by the first person of B party, it appears that the contention and claim of the B party inter-alia are the following:

The entire landed properties concerned in M.C. No. 3 of 1991 before the learned Magistrate, absolutely belongs to the Forest Department of the Government of Tamil Nadu and they are in the possession of ''B'' party consisting of persons 1 to 6 and accordingly, Forest Department, has raised various plantations therein as early as 1986-87. The properties referred to in the decree passed by the District Munsif, Gudalur in O.S. No. 25 of 1985, have nothing to do with the properties involved in M.C. No. 3 of 1991 at present. The stay granted by this Court in W.P. No. 2067 of 1989, for the reason that the Forest Department alone is found in exclusive possession of the said properties, has been vacated. It was further alleged that under the blanket of the interim stay passed by this Court in the above proceedings, Petitioners are trying to grab and squat upon the Government land and grow tea plants and cut the existing trees illegally to the under loss and detriment of the Forest Department and since they have attempted already, complaints to the said effect were lodged already with the police. Basing the contention that the disputed land in question absolutely belongs to ''B'' party of the Forest Department of the Government of Tamil Nadu, they are claiming actual possession and enjoyment of the same on the date of passing the impugned order by the learned Executive Magistrate on 11.7.1991.

Mr. N.T. Vanamamalai, learned Senior Counsel appearing on behalf of the Petitioners in this case who are members of ''A'' party, during the course of his arguments, strenuously contended, firstly that there was no dispute of title or possession or enjoyment of the land in question between the ''A'' party and ''B'' party on 11.7.1991 so as to make the Inspector of Police, Gudalur, to send a report to the learned Magistrate warranting to initiate action u/s 145(1) of the Code of Criminal Procedure and that therefore, the impugned order lacks every legal propriety and liable to be quashed; secondly, that the learned Magistrate while passing the impugned order on 11.7.1991, virtually and deliberately failed to see even the prima-facie of the dispute between ''A'' and ''B'' party with reference to their claim on the face of it and that merely because a report of the Police Officer alleging breach of peace, without any material or substance thereof, has been filed does not empower the learned Magistrate to initiate proceedings u/s 145, Cr.P.C.; thirdly, that the learned Magistrate, while passing the impugned preliminary order u/s 145, Code of Criminal Procedure erred seriously, when the Petitioners (A party) alone are in actual possession and enjoyment of the land in question even as per the decree passed by the court of law, the report of the Tahsildar as well as the Commissioner''s report, fourthly, that the claim projected on behalf of the ''B'' party has not even been materialised and substantiated and that the various proceedings before the authorities under the Survey and Land Records Act and the writ petition and the vacation of the stay by this Court did not tender any assistance or help to the ''B'' party, warranting the proceedings contemplated u/s 145, Cr.P.C, and lastly, that the cumulative effect of all, was that the alleged illegal and unlawful claim of ''B'' party will totally amount to mere trespass and denial of the title and possession of the A party in the land in dispute and if that being the position, initiating proceedings u/s 145, Code of Criminal Procedure by the learned Magistrate, will be totally misplaced and amounts to interference with the right and possession of the A party.

Per contra, Mr. B. Sriramulu, learned Public Prosecutor, while denying every one of the contentions made on behalf of A party submitted that the land in question comprised in Survey No. 477/9 has since nothing to do with the land covered under decree passed in O.S. No. 25 of 1985, namely, Survey No. 251/A. The Petitioners A party, cannot have any say in this case; and that since the learned Magistrate initiated proceedings u/s 145(1) Code of Criminal Procedure and issued process, which is merely a preliminary order, it is for the aggrieved persons, namely, the A party and B party to place all the relevant records and materials before the learned Magistrate so as to get the full adjudication as provided u/s 145, Code of Criminal Procedure and that instead filing this petition u/s 482, Code of Criminal Procedure according to the learned Public Prosecutor, is not the correct procedure, which would ultimately scuttle the legal process provided therefore ;further, that the land in question has already been vested with the Government of Tamil Nadu and notified as Forest land and pursuant thereto, Forest Officials, namely 1 to 6 of B party have been in actual possession and enjoyment of the same even on the date of passing the impugned order or two months prior thereto, and that therefore, there is nothing wrong or illegal in passing the impugned order; and lastly, the learned Public Prosecutor contended that in view of the passing of Tamil Nadu Gudalur Jenmem Estates Abolition and Conversion into Ryotwari Act, the lands are vested with the Government and that has been already decided by issuing notice to the Jenmam and by issuing subsequent notification, the land in question, was declared as a Forest Land and that in as much as the Petitioners of A party or the other Veerankutty, has since lost every one of the legal battle, there are absolutely no merits in the present application, which deserves to be rejected in limine.

In the light of the above circumstances and rival contentions, the only question that arises for consideration is whether the impugned order passed by the learned Magistrate in M.C. No. 3 of 1991 dated 11.7.1991 is vitiated with every illegality, impropriety and as such, amounts to any gross abuse of the process of law and court as well as total miscarriage of justice?

Before proceeding to discuss the factual aspects of the case, I may consider the legal ambit which are necessary to the adverted to at this stage. It is seen that on the F.I.R. sent by the Inspector of Police, Gudalur on 11.7.1991, learned Magistrate has usurped his power u/s 145 Code of Criminal Procedure in passing the impugned order on the same day and whereby, he has directed both A and B parties not only to appear before him on 19.7.1991 and place all materials and records to substantiate their case of possession but also attached the standing crops in the said land in favour of the court and appointed the Village Administrative Officer as the Official Receiver, as provided u/s 146(1) and (2),Cr.P.C. Section 145(1), Code of Criminal Procedure reads 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 or his being 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 statements of their respective claims as respects the fact of actual possession of the subject of dispute.

Though the above Section contains several other sub-clauses and provisos thereto with all its limitations and restrictions in the context of the present case in hand, I deem it, to deal with every case of same, are unnecessary. Since the impugned order attracts Clause (1) of Section 145 of the Code alone, I feel that I may proceed to consider that aspect alone in the context of the written pleadings and the argument advanced thereupon. A plain reading of the above Sub-section clearly, enjoins the fact that to pass preliminary order by the learned Executive Magistrate, the following ingredients are required to be fulfilled.

i) A report of a police officer or other information must be placed before the learned Magistrate;

ii) Such report or the information must directly project a dispute, which is likely to cause a breach of peace concerning land, water or the boundaries therefore situated within the jurisdiction of the concerned Magistrate;

iii) Perhaps, this is the most important one. After the above said two ingredients are fulfilled, the third one incumbent necessarily upon the learned Magistrate is that he has to be satisfied from the said report or the information that a dispute is existing and is likely to cause breach of peace.

A careful analysis of this Section, thus makes it very clear that to initiate a proceeding u/s 145 of the Code, the satisfaction of the Executive Magistrate that there exists a dispute likely to cause breach of peace is the most pre-dominant one and in fact, it is a sine-qua-non to be fulfilled before initiating the proceedings. If any one of these concepts, lacks in totality, then, it cannot be claimed that the learned Magistrate even so, can initiate the proceedings u/s 145 of the Code.

At this juncture, it has become most relevant and necessary to see as to whether the learned Magistrate while passing the impugned order has satisfied himself with regard to the existence of a dispute upon the report of a police officer or other information. It is seen that the learned Magistrate has passed the impugned order on the basis of the F.I.R. sent by the Inspector of Police, Gudalur dated 11.7.1991, registered in Devershola Police Station Crime Number 31 of 1991 u/s 145 Code of Criminal Procedure against A and B party. For the purpose of appreciating the contents of the police report in the context of the above position of law, the extraction of the same report has become necessary, which, reads as follows:

Padanthari village in Devershola Police Station limits lies within the jurisdiction of the honourable court. In that Padanthari village S. No. 477/9 consists of 11.65 hectors. The marginally noted A. Party persons under the leadership of K-Baby (Sl. No. 1) claims that the land belongs to them and they are enjoying the land by cultivating Tea plants for the past about one year while this is the case with them, the marginally noted B. party under the guidance of Divisional Forest Officer, Gudalur (Sl. No. 1) declares that the same area of land noted in the above survey number belongs to the Govt. Forest I and and marginally noted A Party people under the leadership of K. Baby have encroached wrongfully and tries to cultivate the land against the prevailing Rules and regulations of the Govt. Based on this conviction, on 11.7.1991 morning the DFO Gudalur along with Range Officers and other Forest Officials tries to evict the marginally noted A. Party persons from their illegal possession of land. In that process there was law and order problem and cases under criminal sections in Devershola P.S. Cr. Nos. 28/91 u/s 147, 148, 332, 324, 307, 309, 379, I.P.C., Cr. No. 29/91 u/s 147, 148, 341, 323, I.P.C., Cr. No. 30/91 u/s 323, 341, I.P.C. were registered against both the parties. At present a tense situations prevailing between both the parties which may culminate in a very serious Law and Order problem causing bloodshed and disturbance to public tranquillity.

A plain reading of the contents of this report extracted above, clinches the fact that the Petitioners, namely the A party under the leadership of K. Baby have encroached the land to the area of 11.65 hectares, situated in S. No. 477/9 in Padanthorai village, Gudalur already according to the B party, and that consequently after the encroachment, they were trying to cultivate the said land against the prevailing rules and regulations of the Government. Significantly and most strangely, B party while making the allegation of encroachment of the said land by A party has not given the date of encroachment, even approximately and as to how long A party were in possession and enjoyment of the said disputed land prior to 11.7.1991. It clinches further that on the basis of the said encroachment and in view of the same, the Inspector of Police reported that on 11.7.1991 morning the D.F.O. Gudalur along with Range Officers and other officials namely, B party, tried to evict A party persons from their possession of the land and that during the said process, the report of the inspector apprehends that there was law and order problem, which resulted in the registration of cases under various sections in the Devershola Police Station. It would be further seen from the allegations that it was the B party on the morning of 11.7.1991, the Forest Officials of the Forest Department of the Government of Tamil Nadu, tried to evict the A party from the possession of the land in question, which possession according to the B party is illegal. Above all, the Inspector of Police, Gudalur has not sent any other materials or records to show that the respective parties were indulged in criminal activities, which are likely to cause breach of peace and law and order problem. Therefore, a careful perusal of the report which is the only source of information to the learned Magistrate, while passing the impugned order, clearly discloses the fact that the A party, namely the Petitioners herein, were already in possession of the disputed land in question and that on the morning of 11.7.1991, the B party, namely the Officials of the Forest Department of the Government of Tamil Nadu tried to evict them by force, which resulted in the report above referred and forms the basis for the learned Magistrate to initiate proceedings u/s 145, Cr.P.C.

If a party namely, the Petitioners herein, according to the report of the Inspector of Police, Gudalur dated 11.7.1991 were in possession of the land in question situated in S. No. 477/9, in the context of absence of any material as to how long prior to 11.7.1991 they were doing so, then it is not known, under what provision and procedure of law, the officials of the Forest Department representing the Government of Tamil Nadu, without invoking the legal process and complaining to the police and without taking the permission from the higher authorities happened to indulge in evicting the persons of A party or their servants by force or in accordance with their own whims and fancies is a question, which must have been necessarily considered by the Inspector of Police, who is the Law and Order enforcing authority for that area. While observing so, I would make it clear that it is not my intention to go into the merits of the proceedings to be conducted by the learned Magistrate. What I would like to observe in the present circumstances is that the very information projected from the police report dated 11.7.1991 is not sufficient or adequate, or in other words, lead to the subjective satisfaction to be arrived at by the learned Magistrate that there was a dispute regarding the possession of the land in question between the A and B parties, which is likely to create the Law and Order problems and the breach of peace. It is the well-settled principle of law that even an encroacher of a land or property cannot be dispossessed by the Government Official except under the due process of law. But, here is a case where party''s specific case is that A party were already in possession of the disputed land situated in S. No. 477/9 consisting of 11.65 hectares. If that was so, then the Officials of the Forest Department are expected to take appropriate legal action only against the A party provided by the Procedure and law and not by resorting to violence or the forcible dispossession like the private individuals and this fact should have found a place in the mind of the Inspector of Police before sending the report to the learned Magistrate requesting to initiate proceedings u/s 145, Code of Criminal Procedure If in this context, the impugned order passed by the learned Magistrate is scanned, it is manifestly clear, that the report of the Inspector of Police, totally lacks every ingredients and consequently, it is patently clear, that the learned Magistrate ought not to have passed the impugned order initialing proceedings u/s 145 of the Code for the reason that there exists no dispute over possession, which would create a law and order problem and breach of peace.

The next contention made by the learned Senior Counsel Mr. N.T. Vanamamalai on behalf of the A party is on the basis of a decree passed by a civil court and other documents. It appears from the record that the Petitioners herein filed a suit in O.S. No. 25 of 1985 on the file of the District Munsif, Gudalur against the State of Tamil Nadu represented by the District Collector of Nilgiris District, Uthagamandalam and one M. Pappu as Defendants. The plaint filed therein u/s 26 and Order 7, R.1 of the CPC shows that the property is situate in S. No. 251/A to the extent of 40 and odd acres in Padanthorai village, Gudalur Taluk with the boundaries mud road and the village land No. 3 of Gudalur village on the north, S. Nos. 244 and 245 on the south, the village Devala and its land on the east, and first mile river on the west. The land originally belonged to Jenmam of Nilambur Kovilagam, leased out in the year 1950 orally and in or about 1951 the Jenmam recognised the Plaintiff as the tenant and that the Jenmi Collected pattam from 1951 to 1969 and that thereafter, the Plaintiff namely, A party has not paid to the jenmi as he has not collected the pattam in view of the enactment Tamil Nadu Gudalur Jenmam Estates Abolition and Conversion into Ryotwari Act No. 24 of 1969 and that since 1951 onwards, the Plaintiff is in peaceful possession and enjoyment of the suit property and cultivating the same with seasonal crops. Even in the said plaint, as early as 1985, the Petitioner herein, has alleged that since the Forest Officials had started disturbance of peaceful possession and were trying to dispossess him from the said land he filed the suit for the relief of permanent injunction and costs. It further appears that the said suit was not contested by either of the Defendants therein. Accordingly, on 8.3.1985 the said suit was decreed in favour of the Petitioner herein and that till this date, the decree, for perpetual injunction passed against the Government of Tamil Nadu represented by its District Collector of Nilgiris District is in existence and binding. In this context, it has to be noted, that the Forest Officials are also one wing of the District Collector who is representing the entire administration of the District on behalf of the Government of Tamil Nadu. There was no appeal or any (sic)ota of objection for the decree passed above referred. It is settled law that though a decree was passed ex-parte and since it is allowed to stand even today, it is binding on the parties against whom it was passed. Therefore, it has to be noted also that the District Forest Officer, Gudalur, Assistant Conservator of Forests, Gudalur Ranger, Gudalur, Ranger, Flying Squad, Gudalur, Forester, Devashola, Gudalur and the Deputy Tahsildar, Flying Squad, Gudalur, namely, persons 1 to 6 of the B party, are the officers and staff deemed to be working under the District Collector of Nilgiris District who is the party/first Defendant in the above suit. Therefore, any decree passed by the court of law against the District Collector is binding on his subordinates, namely, persons 1 to 6 of the B party though working in the Forest Department and as such, the decree passed in O.S. No. 25 of 1985 on 8.3.1985 is binding on the Forest Officials, namely, B party, herein. It is thus seen from the plaint filed in O.S. No. 25 of 1985 and the decree passed therein. In 8.3.1985, that as early as in 1985, the Petitioners, in A party were in actual possession and enjoyment of the land in question.

The third important document on which the learned Senior Counsel Mr. N.T. Vanamamalai, placed much of his reliance, is the report of the Tahsildar, Gudalur to the District Collector, Uthagamandalam dated 10.12.1991 in L. Dis. No. 9812/91 dated 26.11.1991. It appears from this document that at the directive order of the District Collector in Na. Ka.A5.34149/91 dated 24.4.1991, the Tahsildar Gudalur, has inspected S. No. 477/5, 6, 7, 9, 10 and 11 regarding 32.70.5 Hectares situated in Padanthorai village and submitted the report. According to his report, 0.18.0 hectare is the extent in S. No. 477/5; 0.16.0 hectares in S. No. 477/6; 0.44.5 hectares in S. No. 477/7; 11.65.0 hectares in S. No. 477/8; 19.07.0 hectares in S. No. 477/10; 1.20.0 hectares in S. No. 477/11 and they are registered as ''Forest''. He would further submit that the lands situated in S. Nos. 477/5, 477/6, 477/7 are existence in Naiseththa Kolli and that the said land has been obliterated by one person by name Amsa but he has not cultivated the said lands and that there are a few trees in existence. He has further stated that an extent of 1.20.0 hectares of land situated in S. No. 477/11 is situated near Karakkampadi, just abutting Thevarsholai Estate. In that area one Muyalkrishnan Chetti has cultivated with paddy crops in an extent of 0.50 acres and the rest were seen with grass and bushes like forest.

Next comes the important observation made by the learned Tahsildar with regard to the disputed land in question, namely 11.65.0 hectares situated in S. No. 477/9 situated near the iron bridge abutting Gudalur Pandhalur Highway on the western side of Punnampuzha river. Except one acre in the said extent, the remaining entire area were cultivated with tea plants by one Murugesan and he is in actual possession and enjoyment of the same. According to the Tahsildar, the age of the tea plants found in the said area was about 1 to two years old. He would further observe that there were no trees or bushes in the said area but however, there were 30 jungle trees and four eeti trees in existence found among the tea plants. That apart, two buildings and one shed were found in existence. It is seen further from the final observation of the learned Tahsildar that the lands referred to in the above six survey fields are not fit for public purpose. Under the circumstances, therefore it was made clear that the Tahsildar inspected the said lands for the specific purpose of finding out as to who were in possession of the same and then nature of the land and whether it was fit for public purpose or not.

One another significant and perhaps most important aspect to be noted in this case is the date of filing the report by the Inspector of Police, Gudalur praying the learned Executive Magistrate to initiate proceedings u/s 145, Code of Criminal Procedure It was on 11.7.1991. At the risk of repetition, I may observe once again that the very complaint of the Inspector of Police refers that the B party has alleged that the Petitioner of the A party has encroached the land in question already and that they were and are in actual possession of the land on the date of 11.7.1991 and that therefore, the Forest Officials, namely, 1 to 6 persons of the B party intended to evict A party by force, which resulted in the lodging of complaints and registering of cases against both A and B party by the Inspector of Police. The sketch showing the topography prepared by the Tahsildar regarding the extent of land situated in S. No. 477/9, 4, 251/A to the extent of 40 acres 14 cents, which corresponds to 16.24 hectares, clearly demonstrate the fact that the land in question were in actual possession of the Petitioners of the A party on 11.7.1991 and prior to and subsequently.

A letter written by Forest Settlement Officer dated 16.9.1991 further clinches the fact that the land situated in S. No. 251/A of Padanthorai village in Gudalur Taluk consists of survey field No. 251/A1 with new S. No. 477/9 and other survey fields. Likewise, the enquiry notice of the Assistant Settlement Officer, Coonnoor shows that the old S. No. 251/A1 part corresponds to new S. No. 477/9 and the corrected extent is 11.65.0 hectares. Further the report of the Commissioner appointed by the learned District Judge of the Nilgiris, Uthagamandalam in I.A. No. 536 of 1991 in O.S. No. 103 of 1991, inspected and prepared by an Advocate Commissioner, clearly demonstrates the fact that 40 acres and 14 cents in S. No. 251/A are found fully fenced with barbed wire and stone (granite) posts and that a river is flowing on the eastern and southern side with a hanging bridge to cross to the suit property across the river. It would reveal further that 14 beds of nursery were found destroyed. The evidence of vandalism was clear in the context that the plastic sleeves in which the tea seeds are propagated were found scattered all over. About 8 acres of the land approximately 1/5th of the entire property was seen with signs of tea-plants having been planted and forcibly plucked out and destroyed. Learned Commissioner found the evidence of cross-sticks kept for supporting young tea plants still visible on the lands. A pucca shed with asbestos roofing was found in existence along with another tiled roof shed, which was used as a store-room for agricultural implements. The whole area, according to the learned Commissioner, was found planted with tea-plants and they are still in existence. Apart from the jungle-trees in existence, 250 fully grown coffee plants, 200 pepper vines and 250 young silver oak trees were also found during the inspection made on 21.3.1992.

All the above documentary evidence, according to the learned Senior Counsel, would clearly demonstrate the fact that from 1991 onwards atleast, till today, Petitioners of the A party were and are in actual possession and enjoyment of the property in question and that it was the Forest Officers of the B party who took the law into their own hands and wanted to dispossess them by force under one pretext or the other.

In Ram Sumer Puri Mahant Vs. State of U.P. and Others, ), the Supreme Court has held as follows:

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceeding u/s 145 of the Code, would not be justified. The parallel proceedings should not be permitted to continue and in the event of a decree of the civil court, the criminal court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

In yet another case in Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, the Supreme Court has observed as follows:

It is true that in cases of dispute regarding immovable property a party should not be permitted to litigate before the criminal court when the civil suit is pending in respect of the same subject matter. That does not however mean that a concluded order u/s 145, Cr.P.C., made by the Magistrate of competent jurisdiction should be set at naught merely because the successful party has approached the civil court.

An order made u/s 145, Code of Criminal Procedure deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property. The order is subject to decision of the civil court. The unsuccessful party therefore must get relief only in the Civil Court. He may move the civil Court with properly constituted suit. He may file a suit for declaration and prove a better right to possession. The civil court has jurisdiction to give a finding different from that which the Magistrate has reached.

In the light of the legal ratios enunciated by the Apex Court when made applicable to the facts of the present case, as I have mentioned already, and for the opinion of my reasonings given above, I am fully satisfied to hold that the Petitioner of the A party was found and is in actual possession and enjoyment of the property in question, which is situated in Old S. No. 251/A with new S. No. 477/9 in Padanthorai village of Gudalur Taluk and in such capacity he has raised tea-plants by putting up sheds for the storing of agricultural implements and so on as observed by the learned Tahsildar and that for the above reasoning, it was the Forest Officials of the B party, who under the pretext of some claim and record interfered on 11.7.1991 and whereupon made every efforts to dispossess the Petitioner and that therefore, there are every force in the several arguments advanced by Mr. N.T. Vanamamalai, the learned Senior Counsel appearing on behalf of the Petitioner.

Per contra, Mr. B. Sriramulu, learned Public Prosecutor contended that the present exercise initiated on behalf of the Petitioner u/s 482 of the Code, namely, inviting the inherent power of this Court, to quash the proceedings initiated by the learned Executive Magistrate on 11.7.1991, is not at all maintainable, in the sense, that it is only a preliminary order passed by the learned Magistrate based on the report given by the Inspector of Police, Gudalur, praying for invoking the power u/s 145 of the Code. While saying so, learned Public Prosecutor made every one of his effort in stressing that only after having given full opportunity to both A and B party to produce both oral and documentary evidence pertaining to their rival claims, then only a complete order amounting to the total adjudication with regard to the possession of the land in question will be passed, but however, at this stage, without recourse to such full enquiry praying for the quashing of the preliminary order is not at all maintainable. As I have already adverted to Sub-clause (1) of Section 145, Code of Criminal Procedure which enjoins the basic ingredients to invoke the said provision to clamp proceedings under the said Section, the report of the Inspector of Police, must necessarily contain the basic ingredients in all the four and that upon the basis of which, it shall be the mandatory duty of the learned Executive Magistrate to arrive at a subjective satisfaction that the dispute among the respective parties herein is likely to cause breach of peace and create a problem of law and order. Unless and until the said basic legal mandate is complied with or identified, it goes without saying that the learned Magistrate ought not to have initiated or passed the initial order as contemplated by the law. For the opinion of my reasonings given above in detail, with reference to the very contents of the report by the Inspector of Police and the total basic lackings of the learned Magistrate referred to above, I am totally unable to persuade myself to countenance the arguments advanced by the learned Public Prosecutor in this regard.

The second contention projected by the learned Public Prosecutor is that the land in question to the extent of 11.65 hectares equivalent to 38 and odd acres which is the subject matter of the dispute in hand (one hectare = 2.471) situated in S. No. 477/9, a new number which has been given by the authorities concerned on the survey of re-settlement and that as such, it has nothing to do with the old Survey Number 251/A. Therefore, learned Public Prosecutor would urge that the land in question which is situated in S. No. 477/9 is altogether a different land, in which the Petitioner of the A party cannot have any grievance in this application. For the reason of several documents filed by himself appended to in the typed-set and the letter written by the Forest Officer to the Petitioner herein and all the previous records, which clinch the fact that old Survey No. 251/A has been sub-divided into several numbers and that with regard to the disputed land in question new survey number 477/9 was given by the Survey and Settlement Officer, I may straight away reject the contention of the learned Public Prosecutor, projected on behalf of the Forest Officials of the B party. In fact, the very claim made by the Forest Officials of the B party is only with regard to the land situated in S. No. 477/9, a new number with the corresponding old No. 251/A of Padanthorai village of Gudalur Taluk, as claimed by the Petitioner of the A party and that certainly is not a different land in which the respective parties can claim possession and enjoyment of the same. Under such circumstances, I do not think that there is any force in the arguments advanced by the learned Public Prosecutor in this regard.

The third contention advanced on behalf of the Forest Officials of the B party is that the several court proceedings and by the Officers concerned, do not show that the Petitioners of the ''A'' party were and are in occupation and possession of the disputed area of the land in question in this case and that therefore, the very claim projected on behalf of the Petitioners, namely, that they were and are in possession of the same cannot be accepted but however falsified by the documents appended in the typed-set. To substantiate the said contention, it was pointed out that a copy of the order passed by the Assistant Settlement Officer, Coonnoor in S.R. No. 4/88 ASO dated 29.5.1992, filed by one Eranhikkal Veerankutty, after the remand, showed that the land in question had been declared as ''Forest'' u/s 53 of Act 24 of 1969) and that therefore, neither the Petitioner nor the said Eranhikkal Vecrankutty, a rival claimant, can claim any right of title or possession over the same. A careful perusal of this order, would go to show even to the extent that there was a claim made on behalf of the Petitioner through his counsel that he was in actual possession and enjoyment of the said property for a very long time. But however, on the point of limitation to raise such a claim, the learned Assistant Settlement Officer, it appears, has rejected his claim, which, in my firm view, does not disentitle the Petitioner to project his case of possession in the present proceedings u/s 145, Code of Criminal Procedure Therefore, the said document cannot render any help or assistance to the ''B'' party.

Similarly, an order passed by the Assistant Settlement Officer, Coonnoor on 26.5.1992 on a petition filed by the second person of the ''A'' party against one Veerankutty was relied on to substantiate the case of the ''B'' party. A plain reading of this order would also go to show that the claim and case forwarded by the Petitioner of the ''A'' party tallies with the present case and that upon the basis of a purely technical ground, his claim was rejected, which, according to my considered opinion, does not prove the title or possession in either way in favour of the ''B'' party.

Much reliance was placed upon a possession certificate given by the Forest Department on 4.10.1977. The Gazette notification of the Nilgiris District dated 1.7.1978, the report of the Forest Settlement Officer-III Gudalur dated 11.2.1981, extract of fair Adangal register dated 13.2.1981 recording the land in question as ''forests'', and the Forest Settlement Officer- III''s report dated 30.4.1984 describing the land in question as ''forests'', the sanctioned estimate for raising plantation in an area of 5.17 hectares with surveyed sketch dated 29.10.1986, the rejection of the appeal by the Assistant Settlement Officer, Coonnoor preferred by the Petitioner herein, dated 1.2.1989, copy of the order made by this Court in W.M.P. No. 3161 of 1989 in W.P. No. 2067 of 1989, vacating the stay order granted by this Court, on 17.2.1989 and the remarks by the A.S.O. dated 28.8.1989 were also relied on behalf of the B party to show, that the Forest officials of the B party were in actual possession and enjoyment of the disputed land in question. Above all, the inspection notes of the Tahsildar, Gudalur, dated 28.8.1990 as per the directions given by the High Court in W.M.P. No. 3161 of 1989 and WMP. No. 1547/90 in W.P. No. 2067 or 1989 was relied on very much along with the statement of the son of the Petitioner herein and the certificate of Tahsildar both dated 12.7.1991 and 5.8.1991 respectively. A careful perusal of the inspection notes of the Tahsildar, Gudalur, dated 28.8.1990, clinches the fact that the land in question was not found in possession of anybody but however, lying follow as part and parcel of the forest. It appears further, that in the light of the said report, the stay granted in favour of the present Petitioner herein, has been vacated by this Court in W.M.P. No. 3161 of 1989 in W.P. No. 2067 of 1989. which has been filed against the Assistant Settlement Officer, and still pending for disposal but the points for consideration in all the above proceedings including the writ petition above referred, are all totally different and cannot form a basis for considering the nature of possession of the land in question, in the context of the specific documents, which, I have referred to in earlier part of my order. What is required to be probed in this proceeding is, the disputed land in question is in whose occupation and enjoyment on the date of initiation of proceedings, namely on 11.7.1991, or two months immediately proceeding the same, who was in possession and occupation of the same, and certainly not the title to be gone into but instead, going into the title in this 145, Code of Criminal Procedure proceedings on the basis of assuming that there was a law and order problem or breach of peace is, in my considered opinion, definitely is not a proper question to be considered, when it was admitted that old S. No. 251/A consists of 40 acres 14 cents originally owned by Jenmies of Nilambur Kovilagam and when the enactment of Gudalur Jenmam Estates Abolition and Conversion into Ryotwari Act (Act 24 of 1969), came into force, it is seen that a suo motu enquiry was conducted by the authorities concerned. It further appears that it was the case of the Petitioner of the ''A'' party that he was in actual occupation and possession of the lands by paying the pattoms to the Jenmi and for a very long time and that even so, no notice was served upon him pursuant to the relevant Act and that therefor, the whole trouble arose in spite of his having a very good title and entitled to get patta over the said land.

One another circumstances very significant to be noted is that the Forest Officials of the B party though claim that the disputed land in question was sub divided into and assigned with new Survey Number 477/9 from old S. No. 251/A1, they were not in a position to say, when it was done, for what purpose and upon whose directions resettlement was done. In all, it is not known, why the old Survey Number has been split into and sub-divided into various new numbers. In fact, though an opportunity was given to the Forest Officials of the ''B'' party to produce the relevant documents to clinch the fact, during the course of argument by adjourning the case, they were not in a position to produce the same on the ground that nothing was available. Considering all the above said position and circumstances in the light of the documents relied on behalf of the ''B'' party, I am of the definite view that the Forest Officials of the ''B'' party are not in possession of the disputed land in question on 11.7.1991 or on prior occasions or subsequently.

Then the learned Public Prosecutor to substantiate the case on behalf of the ''B'' party brought to my notice case law decided in Athiappa Gounder v. Athiappa Pandaram (1967 M.L.J. (Crl.) 366), wherein, while dealing with the scope of Section 145(4) of the Code of Criminal Procedure, a Full Bench of this Court has held as follows:

The crucial date under the second proviso to Section 145(4) of the Criminal Procedure Code, in the date of the preliminary order. For the purpose of this proviso a specified period of two months next before the date of such order is fixed for invoking the fiction embodied in the proviso and there is no room for applying any such fiction relating to the date of the preliminary order, to the date of the petition under sub-S.(1) of Section 145 of Criminal Procedure Code.

Thus the second proviso could be successfully invoked only if the party has been forcibly or wrongfully dispossessed within two months prior to the date of the preliminary order and there is no room for applying any fiction that the date of the preliminary order should be deemed to be the date of the petition and to give relief even to persons forcibly and wrongfully dispossessed within two months prior to the date of petition.

In Elumalai Maistry v. Sermakani (1987 L.W. (Crl.) 207), a Single Judge of this Court, has held as follows:

S.145(1), Code of Criminal Procedure only requires the Magistrate to state the grounds of his satisfaction regarding the existence of dispute concerning any land and that it is likely to cause breach of peace. The very object of the proceedings would he defeated if he embarks on a detailed enquiry and writes an order as submitted by the learned Counsel for the Petitioner. In the instant case on going through the order, I find that the grounds of satisfaction of the Magistrate is based on the petition given by the Respondent herein and the report of the Sub Inspector Trivellore town which was called for by him. From those two records, the Magistrate was satisfied that action u/s 145, Code of Criminal Procedure is necessary in view of the fact that there is dispute with regard to the lands referred to in the order and that it is likely to cause breach of peace, The question whether the disputed land is a patta land or a Poramboke land is a matter to he decided during enquiry on the basis of the oral and documentary evidence to be adduced by both the parties and it is not possible to give any finding in this order.

The above ratio would clearly point out that on the report filed by the Police Officer or by a party or parties, Magistrate must arrive at a satisfaction regarding the existence of a dispute that is likely to cause breach of peace and thereby the law and order problem would arise. This decision would also make it very clear that in the absence of the above said element, his proceedings u/s 145, Code of Criminal Procedure cannot be initialed.

It may be noted that a similar matter came up for consideration before the Supreme Court in R.H. Bhutani Vs. Miss Man J. Desai and Others, wherein, the Apex Court has held as follows:

The satisfaction under sub-S. (1) of Section 145 is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is therefore, in his discretion which, no doubt has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore be laid down as to the sufficiently of material for his satisfaction. The language of the Sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or from other information which must include an application by the party dispossessed. The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency the Magistrate.

In Rajpati Vs. Bachan and Another, the Apex Court has held as follows:

Further, it is well-settled that u/s 145, it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he records his satisfaction in the preliminary order, the High Court in revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based.

In Manikyaraj Ballal v. Jakaraj Ballal (1981 L.W. Crl.10) it was held as follows:

As the satisfaction of the Executive Magistrate about the existence of a dispute for passing the preliminary order is a subjective one, the Magistrate is not required to go into an elaborate, protracted and groping enquiry or investigation, since such an enquiry may in many instances defeat the very object of the proceedings which are taken for an effective prevention of the breach of the peace.

In Ashrafi Lal v. Labh Singh 1981 Crl.LJ.1172, it was held as follows:

S. 145(1), Code of Criminal Procedure 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 the light of the above legal ratios enunciated by the Apex Court and other Courts while making it applicable to the case on hand, I would make it clear that it is not my intention to go into the question of adequacy or inadequacy of the grounds available from the report of a police officer or from other information for the learned Magistrate to arrive at a satisfaction that there exists a dispute over the land in question which may cause the breach of peace and a law and order problem. From the preliminary order and the report sent by the Inspector of Police in the context of no other information relied on in this case, I am able to identify that there was no dispute at all which would amount to any breach of peace or law and order problem for the reasoning that as admittedly that the Petitioner of the ''A'' party was already in possession of the land in question armed with the Court decree passed in his favour for a very long time and that it was the Forest Officials of the ''B'' party, on the strength of some documents, to which the Petitioner of the ''A'' party was not a party at all, want to dispossess him from the disputed land in question. It is only where the whole crux lies and in order to initiate proceedings u/s 145, Code of Criminal Procedure the Inspector of Police, Gudalur, may be with an intention to oblige the Forest Officials, lodged the report under the pretext of a dispute over the possession of the land in question and breach of peace and law and order problem. In my considered view, I am to hold that from the report sent by the Inspector of Police, Gudalur in the above Crime Number 31 of 1991, on 11.7.1991, the learned Executive Magistrate ought not to have passed a preliminary order for the simple reasoning that there exists no dispute over the possession of the land in question and if at all anything was there, that would be that the Forest Officials of the ''B'' party want to dispossess the Petitioner of the ''A'' party by force. May be, if the Forest Officials are so advised, are entitled to initiate legal proceedings and get the Petitioner of the ''A'' party evicted from the said land by due process of Law, Otherwise, they cannot and are not entitled to do so. In this regard, after having perused every aspects of the pleadings, documents relied on, case laws and the rival contentions projected on behalf of the respective parties, I am of the firm view that the order passed by the learned Executive Magistrate in M.C. No. 3 of 1991 on 11.7.1991 is not valid in law and liable to be set aside for want of legal competency. For the illegality and impropriety inherent in the impugned order passed by the learned Executive Magistrate, with a view to secure the ends of Justice, I am inclined to exercise my inherent power with the impugned order by setting aside the same.

In the result, the petition succeeds and the impugned preliminary order of learned Executive Magistrate in M.C No. 3 of 1991, dated 11.7.1991 is hereby set aside and the whole proceedings are quashed. Consequently, the Inspector of Police, Gudalur is hereby directed to give protection to the possession of the land in question by the Petitioners of the ''A'' party. All other petitions are dismissed.