Madras High Court
Mrs. Thamaraiammal And Anr. vs The Executive Magistrate-Cum-Revenue ... on 10 January, 2007
Author: K.N. Basha
Bench: K.N. Basha
ORDER K.N. Basha, J.
1. Mr. P.K. Rajagopal, learned Counsel for the petitioners submits that the petitioners have come forward with this revision challenging the final order of the learned Executive Magistrate-Cum-Revenue Divisional Officer, Chengalpattu Sub-Division, Chengalpattu dated 20-5-2006 under Section 145 of the Criminal Procedure Code. Learned Counsel for the petitioner submitted that the revision petitioners are jointly conducting the qarry operations under the name and style of "P. T. Blue Metal Stone Quarry" in quarry No. 2 in Survey No. 25/ 2B measuring 2.50.0 hectares in Tirsoolam village, Tambaram Taluk, Kanchipuram District as lessees for which they have invested a sum of Rs. 1,35,00,000/- and have been in physical possession and enjoyment of the same ever since the date of lease. The lease period is from 4-12-2003 to 3-12-2008. The entire money for the conduct of the quarry operations Including the auction amount of Rs. 1,35,00,000/- besides the Initial deposit of Rs. 10,50,000/- as security have been paid by the revision petitioners herein. The second respondent herein is only a name lender and as such he has no right, interest or possession over the quarry operations, at any time and the same will be proved by the agreement entered into between the revision petitioners and the second respondent herein dated 9-1-2003.
2. Learned Counsel for the revision petitioners pointed out that the revision petitioners were suddenly served with a notice by the first respondent to appear before him in connection with the proceedings initiated under Section 145 of the Criminal Procedure Code in Na. Ka. 5438/05, dated Nil-8-2005, wherein the revision petitioners have been arrayed as opposite party Nos. 1 and 2 and the second respondent herein has been arrayed as opposite party No. 3. It is also submitted by the learned Counsel for the petitioners that the first respondent herein has passed an order under Section 145. Cr. P.C. in Na. Ka. 5438/05-A, dated 16-9-561)5" without following the provisions of Section 145(1) and (3) of Cr. P. C., and being aggrieved by the said order, the revision petitioners herein preferred Cri. R. C. No. 1274 of 2005 on the file of this Court and as per the order dated 1-2-2006, this Court set aside the order of the first respondent herein dated 16-9-2005 and directed the first respondent to conduct de novo enquiry under Section 145 of Cr. P. C. after strictly complying with the mandatory requirements envisaged under Sub-sections (1) and (3) of Section 145 of Cr.P.C
3. It is also submitted by the learned Counsel for the petitioners, that after the order passed by this Court the petitioners received a notice from the first respondent in his proceedings Na.Ka.1193/2006-A, dated Nil-3-2006 purported to have been sighed on 3-3-2006, wherein there is reference about an order passed in W. P. No. 3326/2006 and W. P. M. P. No. 3506 of 2006 by this Court and the revision petitioners came to know about the filing of the writ petition by the second respondent and the revision petitioners have not been made as parties in the writ petition. It is also pointed out by the learned Counsel for the petitioners that in the notice dated Nil-3-2006, no detail has been furnished about the order passed in W. P. No. 3326/2006 by this Court and he has also submitted that the notice does not make any reference about the direction and the order passed by this Court in Cri. R. C. No. 1274/2005 dated 1-2-2006 and in spite of that respondents 1 and 2 are also parties in this revision and also submitted that the petitioners were also constrained to file a writ petition No. 10126/ 2006 on the file of this Court on 23-3-2006 with a prayer to issue a writ of Certiorari calling for the records on the file of the first respondent which culminated in the notice dated Nil-5-2006 issued in Na.Ka.1193/ 2006-A and quash the same and that writ petition was admitted and the same is pending on the file of this Court and subsequently withdrawn after passing of the final order by the first respondent herein it is also contended by the learned Counsel for the petitioners that in spite of these developments, the first respondent herein has passed the impugned order dated Nil-5-2006 in his proceedings Na.Ka.1193/2006-A without following the mandatory provisions of Sub-sections (1) and (3) of Sections 145 of Cr. P. and declaring the alleged possession on the second respondent herein which is in contravention of his jurisdiction to decide possession.
4. The main contention urged by the learned Counsel for the revision petitioners is that the first respondent has committed serious error of law in not following the mandatory requirements under Sub-sections (1) and (3) of Section 145 of Cr.R.C., as the first respondent has not passed any preliminary order before passing the final order namely, the impugned order.
5. Learned Counsel for the revision petitioners has also placed reliance on the decision of the Division Bench of this Court in M. Krishnamoorthy v. P.M. Neelamegham and Ors. reported in 2004-1 L W Cri 22 : 2003 Cri LJ 3820 for the proposition that the RDO-cum-SDM has not passed preliminary order under Sub-section (1) of Section 145 which vitiates the entire proceedings.
6. Learned Counsel for the revision petitioners has further relied yet another decision of this Court in A. Baskara Narayanan v. So. Murugesan reported in 2004-1 LW Cri 287 : 2004 Cri LJ 91 for the proposition that the order passed by the Executive Magistrate without passing preliminary order under Sub-section (1) of Section 145, Cr. P. C. is liable to be set aside.
7. Per contra, Mr. R. Sankarasubbu, learned Counsel for the second respondent vehemently contended that there is no Illegality or irregularity in the impugned order passed by the first respondent herein. It is contended by the learned Counsel for the second respondent that the revision petitioners have not challenged the notice dated Nil-5-2006 issued by the first respondent before conducting the enquiry in respect of 145 proceedings and the learned Counsel has also contended that the revision petitioners, having participated in the proceedings, now cannot challenge the impugned order as they have not shown that any prejudice has been caused to them. Therefore, it is contended by the learned Counsel for the second respondent that the first respondent has passed the order well within the procedure contemplated under Section 145, Cr.P.C.
8. Learned Additional Public Prosecutor for the first respondent submitted that the first respondent has not even mentioned the date on which the impugned order was passed and there is also no date even in the show cause notice and he has also submitted that the perusal of the records clearly show that the learned Magistrate has not passed any preliminary order under Sub-section (1) of Section 145, Cr. P. C.
9. I have carefully considered the rival contentions put forward by either side and also perused the impugned order and other materials available on record.
10. At the outset, it is to be stated that a perusal of the impugned order makes it clear that the first respondent has not passed any preliminary order under Sub-section (1) of Section 145, Cr. P. C. in spite of the specific finding given by this Court in respect of the very same proceedings by order dated 1-2-2006 in Cri. R. C. No. 1274/2005. A perusal of the notice dated Nil-3-2006 also does not disclose the order passed by this Court in Cri. R. C. No. 1274/2005 dated 1-2-2006. It is seen from the notice dated Nil-3-2006 that there is reference about the writ petition No. 3326/2006 and WPMP No. 3506/ 2006 and the order passed by this Court dated 7-2-2006. By placing reliance on the order of this Court dated 7-2-2006 in the above said writ petition, the first respondent herein decided to proceed with the proceedings under Section 145, Cr. P. C. As referred by the learned Counsel for the second respondent, W. P. No. 3326/2006 was filed by the second respondent herein with a prayer for issuance of a Writ of Mandamus to direct the second and third respondents not to interfere with the operation of quarry No. 2 in Survey No. 25/2B (Part) situated at Tirisulam Village, Tambaram Taluk till the petitioner's lease tenure dated 3-12-2008. This Court declined to grant such a relief and on the other hand directed the first respondent herein to pass orders in the proceedings initiated under Section 145, Cr. P. C. within a week from the date of receipt of copy of that order and this order was passed by this Court on 7-2-2006. It is pertinent to be noted that while passing the order in W. P. No. 3326/2006, this Court specifically directed the first respondent herein to pass orders in the proceedings initiated under Section 145, Cr. P. C. As such, it is for the first respondent -herein to pass an order under Section 145, Cr.P.C by strictly following the procedures contemplated under Sub-sections (1) and (3) of Section 145, Cr. P. C. The impugned order also discloses that the first respondent made a reference about the order passed by this Court in Cri. R. C. No. 1274 of 2005 dated 1-2-2006. But curiously, the first respondent has not considered the order passed by this Court holding that the earlier order passed by the first respondent without passing a preliminary order under Section 145(1), Cr. P. C. Stating the grounds of his being satisfied about the existence of a dispute likely to cause a breach of peace concerning the land in question and serve a copy of the order on the petitioners under Section 145(1) and (3) of Cr. P. C. is illegal. It is also relevant to note that this Court in the very same order directed the first respondent to conduct de novo proceedings under Section 145 of Cr. P. C. after strictly complying with the mandatory requirements adumbrated under Sub-clauses (1) and (3) of Section 145 of Cr. P. C. At the risk of repetition, it is to be reiterated that this Court in the order dated 1-2-2006 in Cri. O.P. No. 1274 of 2005 and in the order dated 7-2-2006 in W.P. No. 3326 of 2006 directed the first respondent to pass order under Section 145 of Cr.P.C. in accordance with law. It is needless to state that the first respondent should follow the mandatory requirements contemplated under Section 145 of Cr.P.C.
11. I am of the considered view that there is much force in the arguments advanced by the learned Counsel for the revision petitioners to the effect that the first respondent without passing the preliminary order under Sub-section (1) of Section 145, Cr.P.C. has passed the final order and such order is liable to be quashed, as it is well settled by number of decisions of this Court that not passing of preliminary order under Sub-section (1) of Section 145, Cr.P.C. vitiate the entire proceedings.
12. A Division Bench of this Court in M. Krishnamoorthy v. P.M. Neelamegham and Ors. reported in 2004-1 LW Cri 22 : 2003 Cri LJ 3820 has held as follows:
11. In the present case, there is no dispute with regard to the fact that the Revenue Divisional Officer-cum-Sub Divisional Magistrate has not passed order under Sub-section (1) of Section 145 in the matter. He has only issued summons in Na.Ka. 1 /2190/ 2002, dated 27-3-2002, requiring the parties to attend the enquiry to be held on 28-3-2002 at 11.00 a.m. After hearing the parties, he has passed order in Na.Ka.A. I/ 2190/2002, dated 9-5-2002, under Sub-section (1) and Sub-section (4) of Section 145. In other words, he exercised jurisdiction under Sections 145(1) and 145(4) at the same time and has chosen to pass the impugned order. The power of the Executive Magistrate to pass an order under Sub-section (1) is at the preliminary stage and the power to pass an order under Sub-section (4) is after enquiry, namely, in the final stage. Both the orders cannot be clubbed in a single order. The very fact remains that the Revenue Divisional Officer-cum-Sub-Divisional Magistrate has not passed preliminary order under Sub-section (1) and the entire proceedings are vitiated. It is not known as to whether the Executive Magistrate was satisfied as to the existence of a dispute likely to cause a breach of the peace and the grounds on which he was so satisfied and even in the impugned order, nothing is stated in this regard. We find that there is no application of mind by the Executive Magistrate and he has not followed the mandatory provisions in Section 145, Cr.P.C. and the order passed by him in Na.Ka.A. 1/2190/2002, dated 9-5-2002, is illegal.
12. The prayer in the writ petition is for issuance of writ of mandamus to implement the order of the RDO-cum-SDM. We have already held that the order is an illegal one and hence it cannot be implemented. The order of the learned single Judge has to be set aside.
13. In the result, Criminal Revision Case No. 1142/2002 is allowed and the order of the Revenue Divisional Officer-cum-Sub Divisional Magistrate, Trichy, dated 9-5-2002, in Na.Ka.A. 1/2190/2002 is set aside and the matter is remanded back for fresh consideration and the Revenue Division Officer-cum-Sub Divisional Magistrate is directed to dispose of the same in accordance with the provisions under Section 145, Cr. P. C. The Writ Appeal No. 2605 of 2002 is allowed and the order of the learned single Judge, dated 21-6-2002 is set aside and the writ petition is dismissed. There shall be no order as to costs. Connected Cri. M. P. No. 5685 of 2002 are closed.
13. There is an yet another decision in A. Baskara Narayanan v. So. Murugesan reported in 2004-1 LW Cri 287 : 2004 Cri LJ 91 wherein it has been held as follows:
Suffice to state that on going through the entire records as well as the file, there appears to be no preliminary order at all passed under Section 145(1), Cr.P.C. In fact, a notice has been served on 20-2-2001 asking the petitioner to appear for the enquiry initiated under Section 145(1), Cr. P. C. The basic requirement to initiate such a proceeding is that there must be some information in relation to the presence of breach of peace, which information should be made known to the petitioner, or the counter petitioner as the case may be and it is only thereafter, upon the Magistrate subjectively satisfying about the presence of breach of peace, shall initiate proceedings.
14. In that decision, this Court has followed the earlier decisions of this Court in Kailasa Thevar and Anr. v. Ramiah and 42 Ors. reported in 1994-1 LW (Cri) 201. In that decision, Arunachalam, J. as he then was, has held that there must be a preliminary order under Section 145(1), Cr. P. C. and that order must clearly state the reasons and grounds on which the satisfaction was based to show that the Magistrate had applied his mind in passing the preliminary order. The learned Trial Judge also followed yet another decision in R. Thiagarajan v. K. Angamuthu reported in 1996-2-LW (Cri) 615 wherein His Lordship Mr. Justice M. Karpagavinayagam (as he then was) has held that:
... the enquiry under Section 145 of the Code of Criminal Procedure should be initiated only when the mandatory provisions of Section 145(1) of the Code of Criminal Procedure has been complied with by passing a preliminary order, giving out all the necessary details and reflecting the grounds of satisfaction arrived at by the Magistrate, otherwise the entire proceedings would be illegal.
15. Mr. R. Sankarasubbu, learned Counsel for the second respondent has placed reliance on the decision of the Honourable Supreme Court in Rajpati v. Bachan reported in 1980 SCC (Cri) 927 : 1980 Cri LJ 1276 to substantiate his contentions that the revision petitioners having participated in the proceedings now cannot challenge the Impugned order of the first respondent without showing any prejudice caused to them. The Honourable Apex Court in the above said decision cited supra has considered the point only in respect of the final order passed by the Executive Magistrate. The Apex Court has held in that decision that contradictory statements regarding apprehension of breach of peace made by the parties in the written statements may itself imply existence of such an apprehension and if failure to record such a finding in the final order being an error, it is curable and will not vitiate the entire proceedings. I am of the considered view that the decision cited by the learned Counsel for the second respondent is not at all applicable to the present question involved in this matter.
16. The yet another contention raised by the learned Counsel for the second respondent is that the first respondent issuing the notice dated nil-3-2006 signed on 3-3-2006 itself would amount to passing of an order under Sub-section (1) to Section 145 of Cr. P. C. is also equally unacceptable. The notice dated nil 3-2-2006 not satisfies the requirements contemplated under Section 145(1) of Cr.P.C.
17. Section 145(1) of Cr. P. C. Reads here-under:
145. Procedure where dispute concerning land or water is likely to cause breach of peace- (1) Whenever an Executive Magistrate is satisfied from a report of a police office 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 of 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 statements of their respective claims as respects the fact of actual possession of the subject of dispute.
18. Therefore, it is crystal clear that the Sub-section (1) to Section 145 of Cr. P. C. contemplates of passing a preliminary order giving out all the necessary details and the grounds of satisfaction arrived at by the Executive Magistrate before the further proceedings. Therefore, merely sending a notice is itself not sufficient to comply the mandatory requirements under Section 145(1) of Cr.P.C.
19. Therefore, for the foregoing reasons, the revision petition is allowed and the impugned order passed by the first respondent-Executive Magistrate-cum-Revenue Divisional Officer, Chengalpattu Sub-Division Chengalpattu in Na.Ka.1193/2006-C, dated nil 5-2006 signed on 20-5-2006 is set aside. It is open to the first respondent, the Executive Magistrate to initiate fresh proceedings under Section 145 of Cr.P.C., if the situation warrants, by following the mandatory provisions contemplated under Section 145, Cr.P.C. Consequently, connected miscellaneous petitions are closed.