KIT ANTONY SECRETARY PUNITHA OYAPPAR MEENAVAR MUNETRA SANGAM REGISTERED SOCIETY IDINTHAKARAI RADHAPURAM TALUK TIRUNELVELI DISTRICT Vs. PUNITHA RAYAPPAR MEENAVAR MUNNETRA SANGAM

JUDGEMENT

(1.) WHEN the writ appeal came up for admission, we considered it necessary to hear the writ petition itself, as the writ appeal arises out of an interim order passed in the writ petition. Hence, the Writ Petition No. 10883 of 1995 is also posted along with the writ appeal.

(2.) THE writ appeal is preferred against the order dated 31st January, 1996 passed by the learned single Judge in W.M.P.No. 900 of 1996. That was a petition filed to set aside the order dated 12.12.1995 passed in W.M.P. No. 17291 of 1995 filed in W.P.No. 10883 of 1995. Under that order, the learned single Judge directed respondents 1 and 2 therein viz., the Revenue Divisional Officer and the Tahsildar to remove the seal affixed to the building in question and hand over the same to the petitioner association. It is this order, the learned single Judge has refused to set aside on the ground that the order has been executed and the possession has been handed over to the petitioner -association. One of the reasons given in the order dated 12th December, 1995 passed in W.M.P. No.17291 of 1995 is that respondents 1 and 2, therein viz,, Revenue Divisional Officer and the Tahsildar respectively, exceeded their authority jurisdiction in sealing and attaching the premises and taking possession of the premises without there being no order passed under Sec.445(1) and (4) of the Code of Criminal Procedure.

(3.) IT may be pointed out here that the writ petition came to be filed after premises in question was sealed and taken possession of by the Tahsildar under the directions of the Revenue Divisional Officer. In the counter -affidavit filed by the 2nd respondent herein Revenue Divisional Officer, Cheranmahadevi, it is stated that there was a serious law and order problem created as a result of clash between the two warring groups, one group representing the petitioner association and another group representing the sixth respondent by name Mr. Stalin, that a peace committee meeting was held on 11.7.1995 in which a decision was taken to seal and take possession of the premises in question by the Tahsildar, Radhapuram in order to keep peace and order and the said decision was accepted by both the parties who attended the peace meeting. It was also agreed that the possession of the premises to remain with the Tahsildar till the court or the Government passed suitable orders. It may be pointed out here that the object of the action taken by the respondents 2 and 3 was to prevent the law and order situation going out of control. Such an object may be appreciated. But it is not possible to appreciate the sealing of the premises and taking possession of the premises by the 3rd respondent Tahsildar at the instance of the Revenue Divisional Officer 2nd respondent without initiating and passing a preliminary order under Sub -sec.(1) of Sec.145 of the Code of Criminal Procedure, and thereafter under Sec.146 of the Crl.P.C. if the Executive Magistrate considered the case to be one of emergency could have taken possession and attached the premises in question, which is the subject of dispute until a competent court determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Even in such an event, it would be open to the Magistrate to withdraw the attachment at any time if he was satisfied that there was no longer any likelihood of breach of the peace with regard to the subject of dispute. Another option open to the respondents 2 to 4, if the law and order situation was going out of control, was to initiate a proceeding under Sec.107 of the Code of Criminal Procedure for keeping the peace. On the contrary, respondents 2 to 4 appear to have taken the law into their hands. Even though they are considered to be law enforcing authorities, they have sealed and taken the possession of the premises without any proceeding as per the provisions contained, either under Chapter VIII or under Chapter X of the Code of Criminal Procedure. It is really surprising that the Sub Collector, Deputy Superintendent of Police and the Tahsildar of a taluk, have acted in disregard of law. In the absence of a preliminary order passed under Sub -sec.(1) of Sec.l45,CrLP.C. and treating the case to be one of emergency as per Sub -sec.(1) of Sec.146 of the Code of Criminal Procedure, neither the subject in dispute could have been sealed, nor the possession of the same could have been taken. Learned Government Pleader submits that respondents 2 to 4 have acted in good faith to maintain peace and their decision has been accepted by both the parties. We could only say that even if the parties had agreed for, sealing of the premises and taking possession of the same it could not have been done by the respondents 2 to 4, without observing the required procedure and without initiating the necessary proceedings and passing necessary orders. It is not as though the respondents 2 to 4 were not aware of initiation of the proceedings under Sec.145 of the Code of Criminal Procedure and passing of a further order under Sec.146(1). Thereof, if they considered the case to be one of emergency. We cannot and do not appreciate the action taken by respondents 2 to 4. If such actions were to receive the seal of approval by this Court, it would amount to allowing them to adopt their own procedure in disregard of law. An action like this cannot at all be appreciated by this Court. We refrain from proceeding further against respondents 2 to 4 in this matter, in view of the fact that there was a peace meeting held in which both the parties have agreed for the aforesaid action taken by the respondents 2 and 3. However, respondents 2 to 4 should in future ensure that their actions under all circumstances accord with the law and the procedure laid down therein.