Madras High Court
M.Murugan vs The Sub Divisional Magistrate And on 28 October, 2013
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.10.2013 CORAM: THE HON'BLE Ms. JUSTICE K.B.K.VASUKI Crl.R.C.No.1475 of 2012 and M.P.Nos.1/2012 and 1/2013 1.M.Murugan 2.M.Suresh .. Petitioners Vs. 1.The Sub Divisional Magistrate and Revenue Divisional Officer, Ambattur Division, Ambattur, Thiruvallur District. 2.The Tahsildar, O/o.Madhavaram Tahsildar, Madhavaram, Chennai. 3.The Inspector of Police (L&O) H8, Thiruvotriyur Police Station, Thiruvotriyur, Chennai 600 019. 4.Raj Kumar 5.Lakshmanan 6.Susindra 7.Subash Chandragupta .. Respondents Criminal revision is filed under Section 397 of the Code of Criminal Procedure, praying to call for the records relating to the impugned order dated 16.10.2012 of the first respondent in Na.Ka.No.1898/2012/A1 and set aside the same. For Petitioner : M/s.Mass Associates Mr.A.Swaminathan For Respondents : Mr.C.Iyyapparaj, GA(Crl.Side) R1 to R3 Mr.V.Rajamohan-R4 to R7 O R D E R
The issue involved herein is relating to the existence or otherwise of common passage in TS.No.12, Block No.14, Ward D in Old S.No.306/2A, Sathankadu Village, Thiruvotriyur Town, Thiruvallur District.
2.It is not in dispute that the petitioners herein are the owners of the lands in TS.Nos.12 and 15 in Old S.No.306 Part 2A Basin Road, Sathankaadu Village, then Ambattur Taluk, present Madhavaram Taluk, Thiruvalur District measuring an extent of 2 acres and 38 cents through purchase by a sale deed dated 13.2.2009. The land in TS.Nos.10 to 12 Basin Road, Sathaankadu Village, then Ambattur Taluk, Tiruvallur District are situated adjacent to each other. While T.S.No.12 measuring 0.3000.0 sq.meter belongs to the petitioners, TS.No.11 belongs to the fourth respondent and T.S.No.10 belongs to the seventh respondent. While TS.Nos.10 and 12 are situated adjacent to each other, TS.No.11 is situated behind the same. The perusal of the rough sketch enclosed at page 1 of typed set of papers filed by petitioners to appreciate the issue involved herein, would disclose that 3 roads are shown surrounding TS.No.10 which is according to the petitioners, encroached upon by the fourth respondent. The cause of action for filing this petition according to the petitioner arises because of the attempts made by the contesting respondents herein to make use of part of TS.No.12 as common passage to reach T.S.No.11 which is behind TS.Nos.10 and 12. The gate and compound wall put up by the petitioners was according to them, demolished to create access to reach TS.No.11 and the same gave rise to police complaints by and against the petitioners and the contesting respondents and civil suits between the petitioners and the purchasers under fourth respondent. The petitioners and few others on one hand and the respondents 4, 5, 7 and husband of 6th respondent and one Alagiri are in the proceedings under section 145 Cr.P.C, treated as B and A party respectively. Section 145 Cr.P.C proceedings are initiated on the basis of the police report to the effect that the common passage is said to be existing between TS.Nos.10 and 12 and when the same is sought to be surveyed and measured, dispute arose between the parties and while A party claims existence of common pathway, B party denies the same and the same gave rise to 6 police complaints and the dispute between the parties is likely to lead to law and order problem.
3.An enquiry by the Revenue Divisional Officer was sought for by the Inspector of Police and on the basis of the such report, Revenue Divisional Officer, the first respondent herein initiated Section 145 Cr.P.C proceedings and sent summons to both A and B parties to appear for enquiry. In the course of enquiry, the first respondent also sent for one report from the second respondent Tahsildar, Madhavaram and report from the Assistant Commissioner (Urban Land Tax) and statement were also obtained from the parties concerned. The first respondent, on the basis of the available records, came to pass the impugned order, in and under which, the common passage is as per land survey measurement, recorded to be existing in TS.10/1 and not in TS.No.12 and the parties shall during the pendency of civil suit between the parties, maintain status quo until further orders and B party shall not interfere with enjoyment of the common passage by A party. Aggrieved against the order so passed by Revenue Divisional Officer is this revision by the petitioners before this court.
4.The learned counsel for the petitioners would by relying on the finding rendered by the first respondent in the first part of the order that the common passage lies in TS.No.10/1 and not in TS.12, argue that later part of the same order directing to maintain status quo is contrary and inconsistency with such finding and the first respondent having found no common passage in TS.No.12 ought not to have directed status quo to be maintained and ought to have passed an order of injunction, while the issue is pending before appropriate civil forum. The learned counsel for the petitioners has also in support of such contention cited the following authorities of the Hon'ble Apex Court and the Division Bench and learned brother Judges of our High court: (i)(2004) 13 SCC 421 (Mahar Jahan and others v. State of Delhi and others) (ii)(2013) 3 SCC 366 (Ashok Kumar v. State of Uttarakhand and others) (iii)2003 Crl.L.J.3820 (M.Krishnamoorthy v. P.M.Neelamegham and others) (DB) (iv)2003 (4) CTC 232 (Ponnammal and another v. State rep. by Revenue Inspector, Kinathukadavu and others (v)(2007) 1 MLJ (Crl) 928 (Thamaraiammal and another v. Executive Magistrate cum Revenue Divisional Officer, Chengalpattu and another (vi)(2008) 2 MLJ (Crl) 114 (Lalitha Narayan and another v. Latha Barathan and others and (vii)2013-2-LW (Crl) 162 (Pakkiammal v. the Revenue Divisional Officer cum Executive Magistrate, Pollachi Taluk, Coimbatore District).
5.Heard the learned counsel for the petitioners, learned Government Advocate (Crl.Side) representing the respondents 1 to 3 and the learned counsel for the respondents 4 to 7 and perused the materials available on record.
6.As already referred to, the existence of passage to reach TS.No.11 is not denied. The dispute raised herein is the actual survey number in which the same lies. There is absolutely no record to show that the passage lies in TS.No.12. Even as per the revenue records and as per the finding on the basis of such record by the first respondent, the passage is shown in TS.No.10/1 and not in TS.No.12, which is admittedly belonging to the petitioners herein. It is the specific case of the petitioners herein that there is no access on the landed property belonging to the petitioners to reach TS.No.11 and there was three existing roads one of which was lying between TS.Nos.10 and 12 and the same is encroached upon by the fourth respondent in all sides and thereafter, the access to TS.No.11 is through 20feet road branching off canal road as shown in the rough sketch enclosed at page 1 of the typed set of papers.
7.It is nobody's case that the access to TS.No.11 lies in TS.No.12. That is what the information furnished by the Right to Information Officer, cum Executive Engineer, Thiruvotriyur to one of the petitioners herein. The petitioners are duly informed that there was no access to TS.No.11 from Basin Road through TS.No.12. Such actual state of affairs on land is also accepted by the first respondent authority. Inspite of the same, the first respondent has erred in directing the status quo to be maintained and in restraining B party to interfere with the enjoyment of portion of TS.No.12 as common pathway by A party. As rightly argued by the learned counsel for the petitioners, such direction issued by the first respondent authority is without any jurisdiction and is baseless and unfounded. Such order is passed and such direction is issued without rendering any specific finding that the dispute is such that the same is likely to cause breach of peace. Mere complaints filed against each other and mere pendency of civil suit between the parties, cannot as rightly argued on the petitioners side be the sole ground and is not sufficient enough to presume imminent threat to peace and tranquility in the area concerned. Further it is but pertinent to mention at this juncture that the first respondent has in the course of his enquiry, called for report from the Tahsildar Madhavaram and Assistant Commissioner (Urban Land Tax), third respondent herein. Both the reports from both the revenue officials appear to be of any help to the first respondent in this regard particularly when the Tahsildar, Madhavaram has specifically stated that no survey and measurement could be conducted in the lands in question. Thus, in the absence of any material on record to show the existence of pathway through TS.No.12 and in the absence of any specific finding regarding prevailing situation leading to breach of peace, the direction so issued by the first respondent to maintain status quo and not to interfere with the use of part of TS.No.12 as passage by A party cannot be factually and legally sustainable and the impugned order to that extent, is liable to be set aside.
8.The issue relating to encroachment of land and existence of common passage being civil in nature and the civil suit, having been filed and is pending, the first respondent ought to have directed the parties to approach the civil forum for appropriate direction or injunction as laid down by the Hon'ble Supreme Court and our High court in the judgments cited supra. The Hon'ble Supreme Court in the decision reported in (2013) 3 SCC 366 (Ashok Kumar v. State of Uttarakhand and others), while dealing with the order of attachment passed by the Revenue authority, is of the categorical view that "the object of Section 145 Cr.P.C is merely to maintain law and order and to prevent breach of peace by maintaining one or other of the parties in possession and not for evicting any person from possession and the scope of enquiry under Section 145 is in respect of actual possession without reference to the merits or claim of any of the parties to a right to possess the subject of dispute". It is further laid down in para 10 that the Magistrate has to, under section 146, satisfy himself as to whether emergency exists before he passes an order of attachment and the case of emergency as contemplated under Section 146 Cr.P.C has to be distinguished from a mere case of apprehension of a breach of peace and the Magistrate before passing an order under section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate, when the submission of the parties is filed, documents produced or evidence adduced. The Hon'ble Apex Court in the same judgment, having regard to the prior pendency of the civil suit, observed that it is for the civil court to decide as to who was in possession on the date of the filing of the suit, specially, when the civil court is seized of the matter. The learned brother Judge N.Dhinakar, J. in the decision reported in 2003 (4) CTC 232 (Ponnammal and another v. State) has set aside the preliminary order as not in compliance of Section 145(1) Cr.P.C for want of grounds of his satisfaction and breach of peace likely to occur.
9.Similar view is expressed by three judges of larger bench of the Hon'ble Supreme Court reported in (2004) 13 SCC 421 (Mahar Jahan and others v. State of Delhi and others). The subject matter of the dispute in the case dealt with by the Hon'ble Apex court is house property. When the issue relating to possession is raised before the court, the Hon'ble Supreme Court is pleased to observe that the question as to possession over the property or entitlement to possession would be determined by the Civil court and as the parties are already before the civil court, it is proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit.
10.The impugned order is also challenged on yet another ground i.e. for want of preliminary order under Sub section (1) of Section 145 Cr.P.C. As rightly argued by the learned counsel for the petitioners, the Executive Magistrate has not passed any preliminary order under Section 145(1) Cr.P.C thereby satisfying himself regarding existence of dispute, that is likely to cause breach of peace in his jurisdiction. The police report was followed by the issuance of summons to both the parties, the copy of which is enclosed at page 84 of the typed set and the same was followed by enquiry, outcome of which is the final order. Neither the preliminary order nor the final order would disclose any specific finding regarding existence of such state of affairs which is likely to lead to law and order problem. The Division Bench and the learned brother judges of our High court in the following decisions, held that the final order is vitiated for non passing of any preliminary order under Sub Section (1) of Section 145 Cr.P.C: (i)2003 Crl.LJ 3820 (M.Krishnamoorthy v. P.M.Neelamegham and others) (DB) (ii) (2007) 1 MLJ 928 (Thamaraiammal and another v. Executive Magistrate cum Revenue Divisional Officer, Chengalpattu and another and (iii)(2008) 2 MLJ 114 (Lalitha Narayan and another v. Latha Barathan and others).
11.Thus, viewing from any angle, the impugned order passed by the first respondent herein stands vitiated and is liable to be set aside and is hence set aside, with liberty given to the parties to approach the civil forum for appropriate relief.
12.In the result, this Criminal revision is allowed by setting aside the order of the first respondent dated 16.10.2012 and the parties are at liberty to seek remedy in the civil suit through injunction application before the civil court concerned. Consequently, connected Miscellaneous petitions are closed.
28.10.2013 rk Internet:Yes/No Index:Yes/No To
1.The Sub Divisional Magistrate and Revenue Divisional Officer, Ambattur Division, Ambattur, Thiruvallur District.
2.The Tahsildar, O/o.Madhavaram Tahsildar, Madhavaram, Chennai.
3.The Inspector of Police (L&O) H8, Thiruvotriyur Police Station, Thiruvotriyur, Chennai 600 019.
4.The Public Prosecutor, High Court, Madras.
K.B.K.VASUKI, J.
rk Crl.R.C.No.1475 of 2012 28.10.2013