Andhra Pradesh High Court - Amravati
U. Ramanjaneyulu, vs The State Of Andhra Pradesh, on 27 November, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
IN THE HIGH COURT OF ANDHRA PRADESH
****
Writ Petition No.18610 of 2019
Between:
U.Ramanjaneyulu .... Petitioner
AND
The State of Andhra Pradesh,
Rep. by Principal Secretary
Revenue Department, Secretariat
Velagapudi, Amaravathi, Guntur
and others. .... Respondents
DATE OF JUDGMENT PRONOUNCED: 27.11.2019
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes / No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes / No
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes / No
_________________________
U. DURGA PRASAD RAO, J
2
* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ Writ Petition No.18610 of 2019
% 27.11.2019
Between:
U.Ramanjaneyulu .... Petitioner
AND
The State of Andhra Pradesh,
Rep. by Principal Secretary
Revenue Department, Secretariat
Velagapudi, Amaravathi, Guntur
and others. .... Respondents
! Counsel for Petitioner : Sri K.Srinivas
^ Counsel for Respondents 1 to 5 : Government Pleader for
Revenue
^ Counsel for Respondent No.6 : ----
< Gist:
> Head Note:
? Cases referred:
1) AIR 1985 SC 472 = 1985 CriLJ 752 (1) (SC)
2) AIR 2000 SC 1504
3) MANU/TN/0114/1990 = 1991 CriLJ 1798
3
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
Writ Petition No.18610 of 2019
ORDER:
By way of this writ petition, the petitioner challenges the order in R.C.No.57/2019 dated 07.09.2019 passed by the fifth respondent under Section 145 Cr.P.C. directing both parties i.e., the petitioner and his members and fifth respondent & her members from entering into the disputed land of Ac.23.00 cents in Survey No.46 situated in Yerrakondapuram Village, Brahmasamudram Mandal, Ananthapuram District, until further orders.
2. Heard Sri K.Srinivas, learned counsel for the petitioner, and learned Government Pleader for Revenue representing the respondents 1 to 5.
3. While vehemently arguing that the petitioner and others are the lawful purchasers of the aforementioned disputed land of Ac.23.00 cents under the registered Sale Deed dated 15.06.2009, learned counsel for petitioner would submit that the husband of sixth respondent and others have filed O.S.No.192/2019 on the file of the learned Junior Civil Judge, Kalyandurg, Ananthapuram against the petitioner seeking the relief of declaration and permanent injunction and also for a declaration that the petitioner's Sale Deed dated 15.06.2009 in respect of the suit land of Ac.23.00 cents is null and void. Learned counsel would thus submit that in respect of the same 4 land a civil dispute is already pending in a Civil Court between both the parties. He would further submit that though the plaintiffs in O.S.No.192/2019 sought for interim injunction, the trial Court did not grant such relief and therefore, the sixth respondent herein influenced the police and fifth respondent and thereby, the impugned order was passed by fifth respondent. He would further argue that when a civil suit is pending between the parties in respect of the same property regarding its title and possession, the executive Magistrate under law shall not assume jurisdiction to pass any order as it would amount to exercising parallel jurisdiction and giving scope to multiplicity of the proceedings. He would submit that in such an instance the executive Magistrate shall refer the parties to the Civil Court to vindicate their rights. He thus prayed to set aside the impugned order.
4. Per contra, learned Government Pleader for Revenue would argue that since the land in Survey No.46 in an extent of Ac.23.00 cents was declared as Sotrium village by the Additional Assistant Settlement Officer, Chittoor in his order in Sr.No.4/1/58/Anantapur dated 10.03.1958 and now the petitioner on one hand and sixth respondent on the other on the pretext of purchasing the same property from different vendors making rival claims and altercating with each other which resulted in breach of peace and tranquillity and therefore, as a preventive measure, the executive Magistrate passed the impugned order which is perfectly legal and justified. 5
5. In the light of above respective contentions, the point for consideration is whether the impugned order passed by fifth respondent is legally sustainable?
6. Point: The power conferred under Section 145 Cr.P.C. on executive Magistracy is one of preventive but not decisive in respect of the title concerning to any land or water or the boundaries of a property which is the bone of contention between two rival groups. The objective of Section 145 Cr.P.C. is to create and confer preventive jurisdiction on the executive Magistrate in respect of disputes regarding possession or right of use of land or water or its boundaries, which result in breach of peace. When such dual between two conflicting interests came to the knowledge of an executive Magistrate either through the report of the police officer or upon other information, he has to initiate the preventive action as laid down under Section 145 Cr.P.C. He shall make an order in writing stating the grounds of his being so satisfied and require the parties concerned in such dispute to attend his Court on a specified date and submit the written statements of their respective clients on the factum of actual possession of the subject of dispute. Then the Magistrate, without reference to the merits or claims of any of the parties to a right to possession the subject of dispute, peruse the statements put up before him and receive all such evidence as may be produced by them and decide whether any and which of the parties was, at the date of the 6 order, was in possession of the subject of dispute. He shall also take note of the fact whether if any of the parties has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by him. In such an event he may treat such dispossessed party as had been in possession on the date of his first information. Upon such determination, the Magistrate shall issue an order declaring such party to be entitled to possession until evicted there from in due course of law and forbidding all disturbance of such possession until such eviction. In that course, he can also restore to the possession of the party who was forcibly and wrongly dispossessed.
This is the procedure to be followed by the executive Magistrate under Section 145 Cr.P.C.
7. A situation may arise that sometimes the dispute relating to title and possession over a land, water or boundaries may be pending in a Civil Court for adjudication and still the parties would be on logger heads causing breach of public peace and tranquillity which comes to the knowledge of an executive Magistrate either by police report or otherwise. In such an event, whether he can follow the procedure prescribed under Section 145 Cr.P.C. and conduct an enquiry as to which party was in possession is the question that would engage one's mind. However, this legal aspect is no more res integra for the Apex Court has on two occasions had held thus:
7
In the decision reported in Ram Sumer Puri Mahant v. State of U.P.1, the Apex Court observed thus:
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the Civil Court is binding on the criminal court in a matter like the one before us."
The principle laid down in Ram Sumer Puri Mahant's case (1 supra) was upheld by the Apex Court in its another decision reported in Amresh Tiwari vs. Lalta Prasad Dubey2. It was observed thus:
"Para 13: We are unable to accept the submission that the principles laid down in Ram Sumers' case would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers' case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue."(Emphasis supplied).
Para 14. xxx......... In our view on the facts of the present case the ratio laid down in Ram Sumers' case (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil court that proceedings under Section 145 should not be allowed to continue....xxx."
8. Relying upon the judgment in Ram Sumer Puri Mahant's case (1 supra) the High Court of Madras in Indira v. Vasantha3 held thus:
1
AIR 1985 SC 472 = 1985 CriLJ 752 (1) (SC) 2 AIR 2000 SC 1504 3 MANU/TN/0114/1990 = 1991 CriLJ 1798 8 "Para 17. The last ground relates to the initiation of parallel proceedings, when the identical matter in respect of the disputed property was pending in the Civil Court. The Supreme Court in Ram Sumer Puri Mahant v. State of U.P. MANU/SC/0108/1984:
AIR1985SC472 observed that when a civil litigation was pending in respect of the property wherein the question of possession was involved, initiation of a parallel criminal proceedings under S.145 of the Code would not be justified. This Court in Govindaswami Pillai v. S.I. of Police Aranthangi MANU/TN/0385/1986 : 1987 LW 111 and Magdoom v. Jalal MANU/TN/0408/1987 : 1988 LW 89 applying the dictum of the Supreme Court aforementioned, held that in view of the parties agitating the same subject-matter in a competent Civil Court, parallel proceedings should not be allowed to go on by wasting public time. There was no other option, except to terminate the proceedings commenced by the Executive Magistrate, when a civil litigation was pending between the same parties, in respect of the same property, for whatever relief that could be obtained under S. 145, Cr.P.C., would also be available to the parties in the Civil Court."
9. So from the above rulings, when the dispute touching the same subject property was either pending or already disposed of by a Civil Court, the proceedings under Section 145 Cr.P.C are not maintainable. In such an event, if the civil proceedings are pending, the Executive Magistrate shall direct the parties to obtain suitable orders from the concerned Civil Court. Similarly, if the Civil Court has already adjudicated upon the dispute relating to the same property, then the Sub-Divisional Magistrate shall direct the parties to scrupulously follow the decree passed by the Civil Court.
10. In the instant case, from the impugned order of the Magistrate it is discernible that the factum of pendency of the civil suit was well known to the learned executive Magistrate by the time of passing of the impugned order. Further, the copy of the plaint in O.S.No.192/2019, filed by the petitioner along with material papers, 9 shows the said suit was filed by the husband of sixth respondent herein and some others against the writ petitioner seeking the reliefs of declaration and injunction in respect of the same disputed property of Ac.23.00 cents. In that view of the matter, the executive Magistrate should not have passed the impugned order restraining both the parties from entering into the disputed land. Instead, he should have instructed them to vindicate their rights before the Civil Court. Therefore, the order impugned is liable to be set aside.
11. Before parting, sometimes despite the executive Magistrate instructing the parties to vindicate their rights before Civil Court where the matter is pending, the parties may still wrangle outside the Court and thereby cause breach of public peace and tranquillity. In such an event, the executive Magistrate is not totally powerless to prevent the breach of public peace and tranquillity. At that juncture, he, if not under Section 145 Cr.P.C., can initiate proceedings under Section 107 Cr.P.C. against the parties who are disturbing the peace and tranquillity. Such a power is vested in the Magistrate in the light of Section 145 (10) Cr.P.C. which says that nothing in that Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107 Cr.P.C.
12. On a conspectus of above facts and law, this Writ Petition is allowed and the impugned order in R.C.No.57/2019 dated 07.09.2019 passed by the fifth respondent is hereby set aside and the petitioner 10 and sixth respondent and their men are directed to approach the Civil Court where the civil suit is pending and vindicate their rights concerning to title and possession over the disputed property. Needless to emphasise if the parties despite pendency of the civil suit bent upon causing breach of public peace and tranquillity, the executive Magistrate is authorised to initiate proceedings under Section 107 Cr.P.C. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_________________________ U. DURGA PRASAD RAO, J 27.11.2019 Note: L.R. copy to be marked (B/o) MVA