Dayalan Rajes v. The Revenue Divisional Officer cum Sub Divisional Executive Magistrate, Salem

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 12.02.2009Coram:-The Hon'ble Mr. Justice R.REGUPATHICrl.R.C. Nos.1527 & 1637 of 2008andM.P. Nos.1 of 20081. Dayalan Rajes2. Shiv Dayalan Rajes... Petitioners inboth casesvs.1. The Revenue Divisional Officercum Sub Divisional Executive Magistrate,Salem.2. Mohan Rajes... Respondents inboth cases.Revision Cases against the order in Na.Ka.No.3482/2008 (A2) dated30.10.2008 and in Na.Ka. No.3718/2007 (A2) dated 13.07.2007, passedby the Revenue Divisional Officer-cum-Sub Divisional ExecutiveMagistrate, Salem.For Petitioners: Mr.D.ShivakumaranFor R-1: Mr.R.Muniyapparaj,Govt. Advocate.For R-2: Mr.S.SethuramanCOMMON ORDER Challenging the final order, dated 13.7.2007, passed underSection 145 Cr.P.C. in Na.Ka. No.3718 /2007 (A2) by the firstrespondent/Revenue Divisional Officer-cum-Sub Divisional Magistrate,Salem, the petitioners have filed Crl.R.C. No.1637 of 2008. Questioning the correctness and validity of the subsequent orderdated 30.10.2008 passed by the said authority in Na.Ka.No.3482/2008(A2), in and by which several directions came to be issued, Crl.R.C.No.1527 of 2008 is preferred.2. Inasmuch as both the Revision Cases are interconnected andstemming from the orders passed by the very same authority viz., https://hcservices.ecourts.gov.in/hcservices/ first respondent, they are heard together and disposed of by thiscommon order.3. The second petitioner is the son of the first petitioner, whois the brother of R-2. The father of Petitioner No.1 and R-2 ownedvast extent of lands and during 1956, partition was effected. Thefather died on 25.12.2000 and after his demise, dispute arose betweenthe brothers with regard to the properties which are not covered bythe partition effected during 1956. As per the arrangement madebetween the parties, Jubilee estate fell to the share of thepetitioners while Stanmore Estate to that of the 2nd respondent andwater from common source was also divided between both the estates bycommon pipeline but separate water tanks and the water collected inthe tanks is used for several purposes. In a dispute that arose withreference to sharing of water, R-2 lodged a complaint with the policeagainst the petitioners to the effect that the petitioners trespassedinto his property/Estate and destroyed the pipe-lines, diverting thewater and preventing the flow of water by pipelines to the lands andfurther, they threatened the labourers working in his Estate withdire consequences. Due to the intervention of the well-wishers andthe police, a Memorandum of Understanding has been entered intobetween the parties. Alleging trespass and vandalism as against thepetitioners, R-2 forwarded a representation to the firstrespondent/Executive Magistrate. By order dated 04.05.2007, apreliminary order came to be passed by R-1, directing the parties toappear within 30 days for enquiry. The petitioners did not appear andfinal order was passed by the first respondent on 13.07.2007,confirming the rights of the 2nd respondent and subjecting thepetitioners to criminal liability in the event of their transgressingor violating any of the conditions prescribed. The petitioners claimthat the preliminary order was not served on them and that, withouthearing them and receiving materials from their side, final order waspassed. Aggrieved thereby, an appeal has been preferred to the higherauthority who directed the petitioners to approach the civil forum.In the meantime, a writ petition has been filed by the 2nd respondentbefore High Court, Madras, seeking to implement the final orderspassed by the first respondent. The writ petition was ordered on30.04.2008, whereupon, further orders were passed by the authority on30.10.2008, issuing certain directions. In such circumstances, thepresent revisions have been filed to set aside the final order passedunder Section 145 Cr.P.C. as well as the further orders passedsubsequently by the first respondent. 4. Learned counsel for the petitioners, by stating that both theorders passed by the Executive Magistrate are illegal and liable tobe set aside, submits that the dispute between the parties are purelyof civil nature and such dispute may have to be decided only by thecompetent civil court. Unless the learned Magistrate is satisfiedabout the actual existence of a dispute that would warrant exerciseof jurisdiction under Section 145 Cr.P.C., an enquiry cannot be https://hcservices.ecourts.gov.in/hcservices/ conducted by him in a manner contrary to the procedure. When theauthority is aware of the fact that the issues pertaining to theright and entitlement of the parties to the properties cannot be goneinto and decided by him particularly when proceedings are pendingbefore the civil court, he should have directed the parties toapproach the civil court. The exercise of the Executive Magistratein passing final orders on such aspects and issuing directions inthe subsequent order is beyond his jurisdiction and therefore, thisis a fit case where the orders passed by the authority are liable tobe quashed. 5. Per contra, learned counsel for the second respondent submitsthat the petitioners have trespassed into the property, destroyed thepipelines, prevented flow of water to the estate of the 2ndrespondent and threatened the labourers, resulting in lodging of thecomplaint. Further, though compromise has been reached and amemorandum of understanding entered into and signed between theparties, ignoring such compromise, the petitioners continuouslycreated problems, resulting in law and order problem and breach ofpeace; only under such circumstances, the proceedings under Section145 Cr.P.C. came to be initiated. Though sufficient opportunity wasgiven during preliminary enquiry conducted under Section 145 (1)Cr.P.C., the petitioners failed to appear and did not take up theproceedings; therefore, orders came to be passed in their absence.Also, in spite of such order having been passed, the same was notimplemented by the first respondent and that is the reason why, theWrit Petition was filed before the High court. The writ petition wasordered and only subsequent thereto, the first respondent passedfurther orders issuing certain directions to the authorities. Thedispute arose from sharing of water from common source, hence, suchdispute can very well be enquired by the first respondent underSection 145 Cr.P.C. Inasmuch as sufficient reasons are assigned forissuing the directions, the orders need not be disturbed and theRevision Cases may be dismissed.6. I have meticulously perused the materials available on recordand carefully considered the rival submissions made on either side. It seems that major portion of the properties were alreadypartitioned between the parties and after the death of the father, amemorandum of understanding has been entered into for management ofother properties; however, dispute arose and continued with regardto sharing of water and in that regard, a complaint was given by the2nd respondent to the police on the allegation that the petitionersmade an attempt to damage the pipelines, threatened the workers andprevented free flow of water to his estate. It is seen that, in the preliminary order passed under Section145 Cr.P.C., the Executive Magistrate observed as if the rights ofthe parties would be decided. In the final order, an elaborate https://hcservices.ecourts.gov.in/hcservices/ discussion has been made with reference to the right of sharing ofwater by relying on the MOU entered into between the parties. Whiledirecting the police to proceed against the person violating theterms of the MOU, the parties were asked to adhere to the MOU, not todamage the pipelines and not to disturb the fencing, else, stringentaction would be initiated by the police. It is curious to note that the one and only issue forconsideration viz., dispute over sharing of water, has not beendiscussed at all in detail, rather, those aspects which areirrelevant and outside the purview of jurisdiction and such issueswhich could be exclusively dealt with by the civil court have beendiscussed and directions have been issued. Both the orders lackclarity on the aspect of the actual dispute involved between theparties. Even the existing arrangement between the parties is notdiscussed. Though the dispute between the parties has been takeninto account, enquiry has not been conducted as contemplated underSection 145 Cr.P.C. The specific allegations in the complaint viz., the petitionerstrespassed into the lands of R-2 and attempted to destroy thepipelines and threatened the workmen, have the potential to attractpenal provisions and thereby warrant investigation by the police byregistering a case against the petitioners so as to punish theoffender and transgressor; however, the scope of Section 145 Cr.P.C.is altogether different, for, it relates to such dispute which islikely to cause breach of peace concerning any land or water. It isrelevant in this regard to refer to Section 145 (4) and (6) (a)Cr.P.C. which read thus:-" 145 Procedure where dispute concerning land or water islikely to cause breach of peace.(4) The Magistrate shall then, without reference to themerits or the claims of any of the parties, to a right topossess the subject of dispute, peruse the statements so putin, hear the parties, receive all such evidence as may beproduced by them, take such further evidence, if any as hethanks necessary, and, if possible, decide whether any andwhich of the parties was, at the date of the order made byhim under subsection (1), in possession of the subject ofdispute:Provided that if it appears to the Magistratethat any party has been forcibly and wrongfullydispossessed within two months next before the date onwhich the report of a police officer or otherinformation was received by the Magistrate, or afterthat date and before the date of his order under sub- https://hcservices.ecourts.gov.in/hcservices/ section (1), he may treat the party so dispossessed asif that party had been in possession on the date ofhis order under sub-section (1).(6) (a) If the Magistrate decides that one of theparties was, or should under the proviso to sub-section (4)be treated as being, in such possession of the said subjecthe shall issue an order declaring such party to be entitledto possession thereof until evicted therefrom in due courseof law, and forbidding all disturbance of such possessionuntil such eviction; and when he proceeds under the provisoto sub-section (4), may restore to possession the partyforcibly and wrongfully dispossessed." The provision is succinctly clear that the purpose of enquiry underSection 145 Cr.P.C. is to decide as to which of the parties was, atthe date of the order made by the authority under sub-section (1), inpossession of the subject of the dispute and if it appears to theMagistrate that one of the parties, who should be treated as being inpossession, has been wrongly dispossessed, he may treat such partyas the party in possession and proceed further to declare that suchparty is entitled to possession thereof until evicted from there indue course of law. But, in the case on hand, it appears that the first respondentconducted inquiry into a civil dispute that too in the absence of oneof the parties and arrived at a conclusion assuming the role ofcivil court and issued several directions beyond the scope of theproceedings under Section 145 Cr.P.C. Those directions could beissued only by a civil court after receiving materials from bothsides during the course of trial. Proceedings under Section 145Cr.P.C., meant to create interim arrangement and grant interimrelief, cannot be exhausted by deciding larger issues which canexclusively be dealt with and decided by the civil court. Sincedirections have been issued to the authorities including HighwaysDepartment, after touching the issues outside the scope of theproceedings viz., right and claims of the parties over theproperties, particularly when litigation is said to be pending beforecivil court, I am of the considered view that the orders of the firstrespondent are not sustainable in law. It is pertinent here to refer to the case law in Shandi KumarPanda v. Shakuntala Devi (2004 SCC (cri) 320, wherein, it has beenobserved as follows:-" Possession is nine points in law. One purpose of theenforcement of the law is to maintain peace and order insociety. The disputes relating to property should be settled ina civilized manner by having recourse to law and not by takingthe law in own hands by members of society. A dispute relatingto any land etc., as defined in Sub-sec.(2) of Sec.145 having https://hcservices.ecourts.gov.in/hcservices/ arisen, causing a likelihood of a breach of the peace, Sec.145of the Code authorises the Executive Magistrate to takecognizance of the dispute and settle the same by holding anenquiry into possession as distinguished from right topossession or title. The proceedings under Secs.145/146 of theCode have been held to be quasi-civil, quasi-criminal in natureor an executive or police action. The purpose of the provisionsis to provide a speedy and summary remedy so as to prevent abreach of the peace by submitting the dispute to the ExecutiveMagistrate for resolution as between the parties disputing thequestion of possession over the property. The Magistrate havingtaken cognizance of the dispute would confine himself toascertaining which of the disputing parties was in possession byreference to the date of the preliminary order or within twomonths next before the said date, as referred to in the provisoto Sub-sec.(4) of Sec.145 and maintain the status quo as topossession until the entitlement to possession was determined bya Court, having competence to enter into adjudication of civilrights, which an Executive Magistrate cannot. The ExecutiveMagistrate would not take cognizance of the dispute if it isreferable only to ownership or right to possession and is notover possession simplicter; so also the Executive Magistratewould refuse to interfere if there is no likelihood of breach ofthe peace or if the likelihood of breach of peace though existedat a previous point of time, had ceased to exist by the time hewas called upon to pronounce the final order so far as he wasconcerned."As pointed out earlier, in the present cases, even on the actualissue involved, material aspects such as, a) satisfaction arrived at by the authority on the basis of thepolice report that the dispute was likely to cause breach of peace;b) adequacy of the materials made available; andc) the grounds which compelled to take action,are not reflected in the order. Though the incidents, which led toinitiation of the proceedings, have been mentioned, the reasons forissuing several directions amongst the one to maintain status quo arenot elaborated. At any rate, the Executive Magistrate is notcompetent to decide with regard to rights of the parties particularlyin a case where the right claimed by one party and denied by theother side is a matter for adjudication by the competent civil court.It must be borne in mind that the Executive Magistrate is not theforum where rights of parties to properties can be decided and thathe has no business to deal with or delve into such aspect. Whenlitigation is pending between the parties before civil court, theExecutive Magistrate could have directed the parties to approach thecivil court for decision on the issues. The dispute in questionstarted in the year 2007 and preliminary order was passed on 4.5.2007and thereafter, the parties have been canvassing the major issues ofright over the property, possession, title, violation of MOU etc. https://hcservices.ecourts.gov.in/hcservices/ before the Executive Magistrate without agitating the same beforeappropriate forum. Even though nothing untoward had ever occurredin the meantime, in view of the reason that both the orders havebeen passed by the first respondent exceeding the jurisdictionprescribed, they are liable to be set aside. 7. In the light of the foregoing reasons and observations, theRevision Cases are ordered, the impugned orders passed by the firstrespondent/Executive Magistrate are set aside and the parties aredirected to approach appropriate forum/civil court for adjudicationof the issues in accordance with law. Connected MiscellaneousPetitions stand closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarJI.To1. The Revenue Divisional Officer cum Sub Divisional Executive Magistrate, Salem.2. The Public Prosecutor, High Court, Madras.1 cc To Mr.Shivakumaran, Advocate, SR.6014Crl.R.C. Nos.1527 &1637 of 2008.MBS(CO)SRA(17/02/2009)