MOOPIL NAYAR Vs. M C CHANDY

JUDGEMENT

(1.) The final order passed by the Executive First Class Magistrate at Palghat in Miscellaneous Case No. 4/1956 on the file of his Court, has given rise to this revision petition. The order was passed under Sub-s. (6) of S.145 of the Code of Criminal Procedure. Regarding the possession of the trees involved in that case there was serious dispute between the two parties arrayed on either side, and the lower court has designated these parties as A party and B party. There are three persons in each of these parties. Mannarghat Mooppil Nayar, his son Appu Panicker and his estate Manager K.V. Sankaran Nayar are the three persons forming the A party and they are the revision petitioners before this Court. M.C. Chandy of A.T.T. Colony, Coimbatore, his son M.C. Pothen and his Manager Cherian are the three persons in the B party and they are the respondents to this revision petition. A registered agreement of karar, copy of which has been marked as Ext. A(1) in the present inquiry, was entered into between Mannarghat Mooppil Nayar on one side and M.C. Chandy of A.T.T. Colony, Coimbatore, on the other, in respect of certain specified categories of trees standing in the property scheduled to the document and which forms a specified area of Attappadi Malavaram in Attappadi Amsam of Valluvanad Taluk. Subject to the terms and conditions as specified in the document, the right to cut and remove the specified classes of trees for a period of 10 years from the area specified, had been conferred on M.C. Chandy under this document. This right was being exercised by him with the assistance of the two members of the B party and by about the beginning of the year 1956 the A party began to accuse the B party of doing several unlawful acts in violation of the express terms of the agreement Ext. A(1). These accusations were all denied as baseless and unfounded by the B party who maintained that nothing was being done contrary to the terms of the document. This controversy reached a crisis when the lawyers notice Ext. A(3) dated 29.2.1956 was issued on behalf of Mooppil Nayar to M.C. Chandy intimating him that Moopil Nayar has revoked the permission granted under Ext. A(1) because of the series of unauthorised acts narrated in the notice. To this notice, the prompt reply Ext. A(4) was sent by M.C. Chandy through his own lawyer, repudiating all the allegations made against him and questioning Moopil Nayars right to revoke Ext. A(1). Thus the relationship between the two parties became strained and the police reported to the Executive First Class Magistrate at Malappuram that the dispute between the parties was likely to result in a breach of the peace and that action may be taken to prevent the same. Since the south-west monsoon was fast approaching, the members of the B party were anxious to remove the timber which they had already cut and stacked and thus to prevent them from being washed away during the rains. The members of the A party were ready to oppose such a move on the part of the members of the B party and this was stated to be the imminent cause threatening a breach of the peace. The Magistrate felt that he must take immediate and effective action to maintain peace and accordingly he initiated proceedings under S.144 of the Code of Criminal Procedure, and registered a case as M.C. 13/1956. By the order passed by him on 16th April 1956 the members of the A party were restrained from interfering with the removal from the Attappady Valley of the timber which the B party had already cut and stacked. The members of the B party were also restrained from continuing the process of cutting trees for the purpose of removal from the forest area. The order thus restraining both the parties in the manner already stated, was to be in force for a period of 6 weeks. Against that order the A party preferred a revision petition to the Madras High Court (Criminal Revision Petition No. 399 of 1956) and obtained an interim order suspending the Magistrates order permitting the B party to remove the timber that had already been collected by them. On the objection preferred by the B party, the interim order was vacated and the members of the B party were permitted to remove the timber subject to certain conditions one of which was that they should give security for a sum of Rs. 35000 to the satisfaction of the First Class Magistrate at Malappuram. In the same order it was further stated that the members of the B party shall not further cut any trees till the case already taken up by the Magistrate was converted into one under S.145 of the Code of Criminal Procedure, and duly disposed of. Subsequently on 28.4.1956 the Magistrate passed a preliminary order under sub-s. (1) of S.145 of the Code of Criminal Procedure and directed the parties in M.C. 13 of 1956 to appear before him on 11.5.1956 and file written statements of their respective claims as respects the fact of actual right for use and possession of the subject of dispute. They filed their written statements and adduced evidence to substantiate their case of actual possession of the subject matter in dispute viz., the trees which M.C. Chandy of the B party was entitled to cut and remove in accordance with the terms and stipulations embodied Ext. A1. In the meanwhile, the A party had filed a petition in the Sessions Court of South Malabar at Kozhikode, for a transfer of the case from the file of the First Class Magistrate at Malappuram to any other competent court. That petition was allowed and the case was transferred to the file of the executive First Class Magistrates Court at Palghat. The Court proceeded with the inquiry, and after a due consideration of the evidence on record passed the final order under sub-s. (6) of S.145 of the Code of Criminal Procedure declaring that in respect of the trees which are still available for being cut and removed as per the terms of the agreement Ext. A(1), possession was with M.C. Chandy of the B party, to the extent necessary to cut and remove them and that he is entitled to retain such possession until ousted by due process of law. The present revision petition by the A party is directed against this order.

(2.) One of the points raised on behalf of the A party is that under the karar Ext. A(1) no possession of any land was transferred to M.C. Chandy of the B party, the only right conferred on him being the right to cut and remove certain classes of trees subject to certain terms and conditions. On this basis it is urged that the dispute between the parties about the possession of these trees will not give jurisdiction to the Magistrate to initiate proceedings under S.145 of the Code of Criminal Procedure. I see no force in this contention. Dispute about actual possession of standing trees would also come within the scope of S.145. Sub-s. (1) of that section expressly confers jurisdiction on a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, to take action under that section when he is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction. What all things would come within the expression land or water for the purpose of this section, has been made clear in sub-s. (2), which is in the following terms:

(3.) The next point urged on behalf of the A party is that the Magistrate, who had already issued an order against the B party under S.144 of the Code of Criminal Procedure, could not thereafter continue the same proceedings as one under S.145 by passing a preliminary order as contemplated by sub-s. (1) of that section and then to proceed to enquire into the question as to which party was in actual possession of the subject matter of the dispute at the relevant time. It is argued that the order passed under S.144 was in itself sufficient to prevent any breach of the peace occurring and hence there was no occasion for the Magistrate to apprehend a breach of the peace so as to justify the initiation of proceedings under S.145. I see no force in these contentions also. Under both S.144 and 145 of the Code the Magistrate concerned is given a very wide discretion in deciding upon the particular mode of action to be taken to avert a threatened breach of peace within his territorial jurisdiction. It is for him to decide which would be the most effective mode of action to meet the crisis. In cases where breach of peace is threatened on account of disputes about possession of immovable property, the proper sections to be resorted to under normal circumstances would be S.145. But that does not mean that in the case of such disputes the Magistrate has no jurisdiction to act under S.144 in the first instance and then to convert the same into proceedings under S.145. If the situation is so grave and dangerous as to brook no delay on account of the consideration whether the threatened breach of peace is really on account of dispute about possession of immovable property, the Magistrate will certainly be justified in issuing a prohibitory order under S.144 against either of the contending parties or against both, directing them not to do any act which might endanger peace. It is significant to note that an order under this section is to be in force normally for a period of two months only and that the order does not finally decide any of the claims of the opposing parties. Within this period the Magistrate will get sufficient time to satisfy himself as to the exact nature of the disputes between them. If he is satisfied that the dispute relates to the possession of immovable property, it will be open to him to modify the order already issued under S.144 and to initiate proceedings under S.145. This position is made clear by sub-s. (4) of S.144 which states that: