ANBAYYAN Vs. REGINAMMAL

JUDGEMENT

(1.) This revision is filed against the order of the Executive Magistrate (Assistant Collector, Padmanabhapuram) - M.C. NO.15 of 1992 under Sec. 146 (1) of the Code of Criminal Procedure appointing the Tahsildar of Kalkulam as Receiver of the property. It appears from the record that the revision petitioners who have already won in the civil litigations against the respondent herein, which culminated in the second appeal before this Court, gave a petition before the Executive Magistrate (Assistant Collector, Padmanabhapuram) alleging harassment by the Police on behalf of the respondent herein and to stop the police harassment in enjoying his property. The Executive Magistrate seems to have treated this petition as one under Sec. 145 Code of Criminal Procedure and directed both parties to appear before him and passed this order under Sec. 146, Code of Criminal Procedure, appointing the Tahsildar, Kalkulam as receiver holding that the respondent has been forcibly dispossessed by the petitioners and they illegally entered into the property on 11-8-1991. According to the Executive Magistrate, as he found the likelihood for breach of peace, which would endanger the safety of the persons, he felt that until the orders are passed by the competent authority, the appointment of a Receiver was necessary.

(2.) The learned counsel for the revision petitioner would point out series of flaws in the order of the Executive Magistrate who without complying with the provisions of the Code and also without even understanding the very nature of the civil suit, which ended in the second appeal before this Court in favour of the petitioners, has passed the final order which is perverse. The first point raised by him is that for passing the 9rder under Sec. 146(1) the primary requisite is that there must have been an order under Sec. 145(1) and in this case without passing the requisite preliminary order under Sec. 145(1), the Executive Magistrate has straightaway passed the order under Sec. 146(1) of the Code. See. 146 of the Code reads that if the Magistrate at any time after making the order under sub-sec. (1) of Sec. 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Sec. 145, or If he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute he may attack the subject of the dispute until a competent court has determined the rights of the parties. Therefore, the orders under Sec. 146(1) of the Code can be issued only when an order has been passed first under Sec. 145(1) stating that a dispute was likely to cause a breach of peace concerning any land with his jurisdiction. Further he also shall make an order in writing stating the grounds being so satisfied and requiring the parties in such dispute to attend his Court on a specified date and time and to put in written statements of their respective claims, as regards the facts of actual possession of the subject of dispute. The learned counsel for the revision petition would argue that no such order was passed by the Executive Magistrate. I find only a notice issued by the Executive Magistrate dated 14-1-1992 to the effect that with regard to the dispute over the possession on Survey No. 624/12, the enquiry would be conducted on 27-1-1992 at 10.00 and both parties should appear with the records to prove their rights. Except this notice, there is nothing to show that any order was passed by the Executive Magistrate as required under Sec. 145 (1) of the Code for the fact that he was satisfied from the information that there was a dispute likely to cause the breach of peace. Therefore, as rightly contended by the learned counsel, there is no order under Sec. 145(1) of the Code to proceed under Sec. 146(1) of the Code to attach the property and for the appointment of a Receiver.

(3.) Another glaring mistake committed by the Executive Magistrate is that in spite of he referring to the civil suit between the parties and its culmination in the High Court in Second Appeal No. 828 of 1982, in which the claim of the respondent for the title and possession to the suit property, was negatived, the Executive Magistrate gives a finding that she was in possession of the property till 10-8-1991 and was forcibly disposed on 11-8-1991. I am amazed to see such a finding by an Executive Magistrate, who is an I.A.S. Officer without applying his mind as to the finding of the High Court, holding that the respondent was not entitled to title or possession. As her claim for possession itself would indicate that she was not in possession of the property. However, the Executive Magistrate, goes to the extent of holding that she was dispossessed only on 10-8-1991 and he was satisfied from the records placed before him that she was in possession till 10-8-1991. It is unfortunate that the Executive Magistrate not even able to understand the sanctity of the order of the Civil Court which alone can decide the right of the parties. In this case, the respondent fought up to the High Court claiming title and also possession, as she was not in possession of the property. Having failed in all the Courts, she has satisfied the Executive Magistrate, somehow, that she was in possession till 10-8-1991 and was dispossessed only on 11-8-1991. This finding of the Executive Magistrate is nothing but absurdity, as it is contrary to the findings of the civil court, it carries no weight. The Executive Magistrate has throughly missed the point and has committed a gross error or not only in the point of law, without passing a preliminary order under Sec. 145 (I) of the Act but also giving a finding against the decision of the civil courts as though the respondent was in possession till 10-8-11. Therefore, the order of the Executive Magistrate has to be quashed.