S.K. Jagannathan and Others vs A.K. Ramamoorthy

Pratap Singh, J.—Counter petitioners in M.C.6/91 on the file of the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai,

have filed this Petition u/s 482 Criminal Procedure Code praying to call for the records in the aforesaid M.C.6/91 and quash the same.

On the petition filed by the respondent against petitioners herein, the Sub-Divisional Magistrate and Revenue Divisional Officer, Madurai, has

passed the impugned order u/s 145 (1) Criminal Procedure Code. In the said order, the Sub-Divisional Magistrate had directed the petitioners

herein not to disturb the possession of the petitioner before him and his party. The petitioners seek to quash the aforesaid order.

Mr. K.V. Sridharan, the learned counsel appearing for the petitioners, had put forth the following contentions:

(1) the impugned order directs the petitioners herein not to disturb the possession of the petitioner and that in a preliminary order u/s 145 (1)

Criminal Procedure Code, possession of one party cannot be declared and that only u/s 145 (4) Criminal Procedure Code, the Sub-Divisional

Magistrate shall decide which of the parties was in possession on the date of order, after perusing the statements put in by the parties and after

hearing them and after receiving all such evidence as may be produced by them and not at the outset itself.

(2) The Sub-Divisional Magistrate cannot give a direction to the petitioners herein not to disturb the possession of the petitioner and his part and

such direction can be given only u/s 145 (6) of the Code after giving a decision u/s 145 (4) of the Code.

(3) The Sub-Divisional Magistrate has not recorded the grounds of satisfaction in the order.

(4) The order u/s 145 (1) Cr.P.C. can be made only if the Executive Magistrate is satisfied that a dispute is likely to cause breach of peace existed

concerning a land and in this case, the subjective satisfaction of the learned Magistrate as given out in the impugned order as only with regard to the

possibility of breach of peace and he has not expressed satisfaction that the breach of peace with regard to the dispute may concerning the land

and on that count also, the impugned order is vitiated.

Per contra, Mr. R. Shanmughasundaram, the learned counsel for the respondent, would contend that object of Section 145 of the Code is to

maintain possession of one part and prevent breach of peace due to dispute concerning the property and there is no illegality in stating in the

preliminary order u/s 145 (1) of the Code itself that one party is in possession and restraining the other party from interfering with the possession of

the party. He would further contend that grounds of satisfaction had been set out in the impugned order itself and that the subjective satisfaction

referred to by him in the last para of the order should be taken in the context of the narration given in the preamble portion and other portions of

the order which would clearly indicate that dispute as with regard to the immovable property and the said dispute is likely to cause breach of

peace.

To appreciate the rival contentions of the learned counsel, Section 145 sub-section (1), 4 and (6) need extraction. They read as follows:

145-Procedure where dispute concerning land or water is likely to cause breach of peace: (1) 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 statements of their

respective claims as respects the fact of actual possession of the subject of dispute. (4) The Magistrate shall then, without reference to the merits or

the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such

evidence as may be, produced by them, take such further evidence, if any, as he thinks necessary, and if possible, decide whether any and which

of the parties was, at the date of the order made by him under sub-section (1) in possession of the subject of dispute;

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date

on which the report of a police officer of other information was received by the Magistrate or after that date and before the date of his order under

sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1)

(6)(a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession

of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and

forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4) may restore to

possession the partly forcibly and wrongfully disposed.

(b) The order made under this sub-section shall be served and published in the manner Laid down in sub-section (3).

The material portion of the impugned order reads as follows:

I have applied my mind on the petition of the petitioner and 1 am satisfied from the report of the Assistant Commissioner (L&O) Madurai City and

from my confidential enquiry that there is every possibility of breach of peace and any trivial incident may spark off riot and disorder. As the

petitioner and their other members art the actually elected members of the Sourashtra High School Council and as they have duly taken charge of

the council. I, Thiru T. Sevathan, Sub Divisional Magistrate and Revenue Divisional Officer, Madurai u/s 145 (1) Cr.P.C. hereby order not to

disturb the possession of the petitioner and his party and call upon the counter petitioners and the petitioner to attend this court on 2.9.91. at 4.00

p.m. either in person or through their advocates and I further require the parties to put in written statements of their respective claims, as respects

the fact of actual possession of the properties in dispute.

(Emphasis supplied)

The above would show that the Sub-Divisional Magistrate has already decided that

(i) one of the parties viz. the petitioner was in possession on the date of the order; and

(ii) he has also further issued an order forbidding disturbance of possession of the petitioner.

The finding mentioned in the first part and the direction given in the second part would fall within the ambit of Section 145 (4) and 145(6) Criminal

Procedure Code respectively. Such a finding and such a direction should not be given in the preliminary order u/s 145 (1) Criminal Procedure

Code itself. Only after the statements were filed and after hearing the parties and after receiving of the evidence, such a finding can be given u/s

145 (4) Criminal Procedure Code. When such a finding is given, the other Party can be forbidden from disturbing such possession and that is

provided u/s 145 (6) Criminal Procedure Code. But Sub-Divisional Magistrate has given a finding and as well the direction in the preliminary order

itself. That would clearly amount to pre-judging the issue and is clearly unwarranted and beyond the ambit and scope of Section 145 (1) Criminal

Procedure Code. Mr. R. Shanmughasundaram, would contend that the object of section 145 (1) Criminal Procedure Code is to maintain Party in

possession and such a preliminary order incorporating such a finding and direction is not illegal and in this regard, he relied upon the ruling reported

in Janaki Ramachandran v. State. 1988 L.W. Cri.147 This ruling was reversed by the Supreme Court and it was reported in Dr. Hande v. Janaki

Ramachandran 1988 L.W. (Crl.) 399 In Surendra Mishra Vs. B. Trinath Rao and Others, it was held that before passing final order. Magistrate

should give adequate opportunity to opposite parties to put forward their case on merits.

In Thakurani v. Sundarkumar AIR 1954 MB 144, it was held that no power has been conferred upon a Magistrate by S.145 to issue an order of

temporary injunction pending his final decision. In para 4, the learned Judge had held as follows:

Section 145, Criminal Procedure Code, confers on Magistrate a limited jurisdiction to deal with immovable property and that too if he is satisfied

that there existed a dispute relating to it which was likely to cause breach of peace. In case a Magistrate thought that immediate action was

necessary to prevent breach of peace, he is empowered to attach the property which is subject matter of dispute. No power, however, has been

conferred upon a Magistrate by this section to issue an order of temporary injunction as has been done in this present case.

In that case, the preliminary order was passed as in the case before me. The learned Magistrate has passed a preliminary order in which he has

also incorporated a direction that notice should be issued to the opposite party restraining them from interfering the land in dispute pending final

decision of the case and also not to commit breach of peace. While considering that order, the learned Judge has laid down as extracted above.

From the language of Section 145 (1), (4) and (6) and on the ruling mentioned supra, I am clear that the impugned order u/s 145 (1) Criminal

Procedure Code, wherein he has found the petitioner to be possession and has given a direction forbidding interference thereof is clearly exceeding

the ambit of Section 145 (1) Criminal Procedure Code and on that score liable to be quashed.

Regarding grounds 3 and 4 taken by Mr. V.K. Sridharan, I find from the impugned order that the grounds of satisfaction of the Magistrate are

explicit in the order itself. The Magistrate has referred to the contents of the written complaint and report of the Inspector. Then the Magistrate has

referred to the records produced by the petitioner and has finally stated that he has applied his mind and satisfied from the report of the Assistant

Commissioner that there is even possibility of breach of peace and then has passed the order. The grounds of satisfaction and his subjective

satisfaction are all set out in the impugned order. Moreover, the dispute is with regard to the possession of the building as has been set out in the

first para of the order. In view of the above, grounds 3 and 4 taken by Mr. K.V. Sridharan cannot be sustained and I do not accept the same. But

yet in view of my acceptance of grounds 1 and 2 the impugned order is liable to be quashed.

In view of the above, the petition is allowed and the proceedings in M.C.No.6/91 of the Sub-Divisional Magistrate and Revenue Divisional

Officer, Madurai, dt. 20.8.91 are hereby quashed.