NARESH THEVAR Vs. EXECUTIVE MAGISTRATE

JUDGEMENT

(1.) N Party in M.C. 3 of 1986 on the file of the Executive Magistrate and Tahsildar, Thiruthuraipoondi, has preferred this petition under section 842, Cr. P.C., to quash the said proceedings against them. The Executive Magistrate and Tahsildar, Thiruthuraipoondi who is arrayed as the first respondent in this petition, has passed a preliminary order under section 145, Cr. P.C., on 25.7. 1986 directing both the A and B parties not to enter upon the land at any cost and also directed them to appear before him on 5.8.1986 to put forth their respective claims. The said order is challenged in this petition on the ground that the preliminary order does not show the grounds on which the Magistrate was so satisfied and also the source from which he obtained the information that there is a dispute and that it is likely to cause breach of peace. It is further submitted that it is clear from the said order that there is no existing dispute which may lead to breach of peace and that there is only an apprehension ill the mind of the Magistrate that when the parties may try to enter upon the land in future, it will result in breach of peace and that such an apprehension cannot form the basis of the order under section 145 of the Code. It is also submitted that the property could be attached under section 146 of the Code only in the case of an emergency or only when the contesting parties are not in possession of the property in dispute. According to the petitioners, the ownership of the property and Its possession as seen from the revenue records, stands in the names of petitioners 2 and 3 who are paying kist and that there is no need to attach the disputed property or to appoint a Receiver. In tile instant case, the Magistrate not only passed a preliminary order under section 145, Cr. P.C. but also passed another order appointing the Revenue Inspector of Muthupet as Receiver of the property for cutting the coconuts and selling the same in public auction and another order attaching the property under section 146(1), Cr. P.C. The said order is illegal and improper and it is not in accordance with the said provision without giving an opportunity to the petitioners to prove that they are in possession of the land in dispute as rightful owner and that the attachment and appointment of Receiver are unnecessary.

(2.) It is seen that the subject matter of the dispute is in respect of the land comprised in R.S. 190/1 and the coconut grove therein. The Magistrate has observed in the preliminary order under section 145(1), Cr. P.C., that he was satisfied that there is a dispute in regard to the possession of the land in question between A and B party and that if anyone of the parties try to enter upon the land, there is likelihood of breach of the peace and so he directed both the parties under section 145(1) Cr. P.C., not to enter upon the land at any cost and directed them to appear before him for enquiry. The said order was attacked on the ground that the Magistrate has not stated, on what basis he was satisfied that there is dispute with regard to the said land and that there is likelihood of breach of peace. It is contended that the ground for arriving at such satisfaction has not been set out and that the said order is liable to be set aside. The learned counsel for the petitioners relied on various case laws in support of his contention. Before ever adverting to the decisions the provisions of section 145(1) Cr. P.C., may be quoted. It runs 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 on 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 statement of their respective claims as respects the fact of actual possession of the subject of dispute

(3.) In Peria Mannadha Gounder v. Marappa Gounder Krishnaswami Reddy, J. heldUnder section 145(1) Cr. P.C., the Magistrate having jurisdiction shall make an order in writing that be is satisfied either from a police report or other information that a dispute likely to cause a breach of peace exists and state the grounds of his satisfaction before requiring the parties concerned in such dispute to attend his Court and put in written statements. This provision of making the order in writing and stating the grounds of his satisfaction appear to be mandatory. The preliminary order should state clearly the reasons and grounds on which the satisfaction is based and that the magistrate had applied his mind in passing the preliminary order. In Kulandaisami v. Sherfuddin2, it has been held by Natarajan J. (as he then was) It is not every dispute that will attract invocation of section 145, Cr. P.C. by the contesting parties. The dispute must be also attended with a threatened breach of peace. A heading of chapter 10 in which section 145, Cr. P.C. occurs is Maintenance of public order and tranquility. The Magistrate is not; therefore, concerted with disputes between two or more number of parties acrimonious, however, they may be, unless there is a likelihood of such a dispute resulting in disturbance of public tranquility and resultant breach of peace. It is no doubt true that if an order is passed by a Magistrate, in exercise of his powers in favour of one of the contesting parties, the Magistrate should give reasons why he is passing that order TI Learned counsel for the petitioners relied on the decision in Ashfafi Lal v. Lath Singh3. where it was held Section 145(1), Cr. P.C. 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 Bisse Gowda v. State of Mysore4 it was held A mere statement in the preliminary order made under section 145(1) by the Magistrate that he was satisfied from the police report that a dispute is likely to cause breach of peace, is not enough, but he must state the grounds of his being so satisfied which alone entitles him to make such an order. Noncompliance not only renders such preliminary order without jurisdiction but also vitiates the entire subsequent proceedings. Therefore, the mere fact that subsequent final order has been passed, will not have the effect of rendering the proceedings valid and the final order is liable to be quashed under section 439.In Gabrial Thanakayyan v. Narayana Nadar5, the same view was reiterated and it was held- On a careful reading of section 145 as a whole, particularly sub-section (1) it can be seen that every foundation of an action under the sub-section is the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed on the date of the preliminary order, concerning the possession of any land or water or boundaries thereof situated within his or her local jurisdiction. It is only on being satisfied that there is a real dispute existing concerning the possession of immovable property and that such dispute is likely to cause the breach of peace that the Executive Magistrate gets jurisdiction to initiate proceedings and pass a preliminary order under section 145 of the Code. This satisfaction he or she may get from a report of the police officer or upon other information. The Magistrate must be satisfied of the necessity to take action under section 145 of the Code, before a. preliminary order is passed and it cannot be said that in every case such satisfaction would automatically follow from a report of the police officer or upon other information. The provision in the Sub-section that the Magistrate shall make an order in writing, slating the grounds of his satisfaction is mandatory. If the grounds are not stated in the order, it will be difficult to test the correctness and validity of the order. Peria Mannadha Gounder v. Marappa Gounder6, relied on.