BHEERAVOLU MADAN MOHAN REDDY Vs. SUB DIVISIONAL MAGISTRATE AND REVENUE DIVISIONAL OFFICER POLANCHA KHAMMAM DIST

JUDGEMENT

(1.) This petition has been filed under Section 482 Cr.P.C. to call for the records relating to the proceedings in RC.No.E/2359/96 dated 28-6-1996 initiated under Section 145 Cr.P.C. by the first respondent i.e. Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Paloncha, Khammam District and to quash the same.

(2.) The impugned proceedings relate to the possession of the lands in survey numbers 454/23/72/1, 454/23/72/3, 454/23/73/1, 454/ 23/73/3 total extent nearly Acs.30.00 situate at Gandugulapalli, hamlet of Nagupalli of Dammapeta Mandal, Khammam District, which is in tribal area. Under the impugned proceedings said to have been passed under sub-sections (1), (4), and (6) of Section 145 Cr.PC, the first respondent declared that 30 tribals mentioned in that order are in possession of the said lands and entitled to retain such possession until ousted by due course of law and forbid any disturbance of their possession in the meantime by the petitioner Madan Mohan Reddy. Challenging the said order of the first respondent, the petitioner has filed this application.

(3.) Sri S. Lakshma Reddy, learned Counsel for the petitioner made the following submissions: (i) The first respondent passed the impugned order without issuing notice and passing preliminary order under sub-section (1) of Section 145 Cr.PC and as such the same is liable to be quashed. (ii) Even before passing of the impugned order, the dispute relating to possession of the lands was seized by the Civil Courts and as such the first respondent has no jurisdiction to initiate proceedings under Section 145 Cr.PC. The learned Counsel further elaborates that the disputed lands have been in possession and enjoyment of the petitioner and his family since 1966 as the same were purchased by the father of the petitioner late B. Lakshma Reddy under a registered agreement of sale from the original pattadar K.A.Dinakar and their possession has been upheld by the special Deputy Collector by his order dated 20-3-1994 in L.T.R.Case No. 883/85/DPT and 170/89/DPT. He further contends that when non-tribals in the locality tried to interfere with the peaceful possession and enjoyment of the said lands, the petitioner's mother representing the family filed O.S.No.29/95 on the file of Subordinate Judge's Court, Sattupalli for perpetual injunction and she also filed I.A.No..267/95 for granting temporary injunction and the name has been granted and the suit is pending. The learned Counsel further submits that at the instigation of non-tribals when some of the tribals tried to forcibly occupy these lands, the petitioner's mother also filed O.S.No.9/96 on the file of special Assistant Agent, Mobile Court, Bhadrachalam having territorial jurisdiction over the said area and obtained ad interim injunction as per orders dated 31-01-1996 in I.A.No.16/96 and the same is subsisting and some of the tribals mentioned in the impugned order are some of the defendants in the said suit O.S.No.9/96. Thus, he submits that when the Civil Court has seized the subject-matter of the dispute between the same parties, the executive Magistrate has no power to initiate proceedings under Section 145 Cr.P.C. (iii)The first respondent straightaway passed the final exparte order declaring that the tribals are entitled to the possession of the land until evicted therefrom in due course of law, without issuing notice to the petitioner and his family members and without calling for the written statements and evidence to be adduced with respect to their claim for the disputed land.