Madras High Court
C.K.P. Memmon And Ors. vs K.P. Sulaiman And Ors. on 22 April, 1999
Equivalent citations: 2000CRILJ221
ORDER B. Akbar Basha Khadiri, J.
1. The counter petitioner Nos. 2 to 5 before the Executive Magistrate have come forward with the instant Criminal R. C.
2. This criminal revision has arisen in this (sic) One Ibrahim had a first wife. Through her, he had a son by name Aboobacker. Ibrahim married one Kadeessu as the second wife. On 31-1-1953 Ibrahim executed a sale alienating the disputed property in favour of his second wife Kadeessu. Ibrahim died during 1958. Aboobacker was looking after the affairs of Kadeesu, and managed and maintained the properties. Aboobacker appears to have created some documents in favour of the first respondent herein by name Sulaiman. Sulaiman had obtained a Bogus possession certificate from the Tashildar and he claims possession of the disputed properties.
3. Petitioners one to three herein are the children of Kadeesu. Petitioners 1 to 3 herein were living in a rented house elsewhere. Since the landlord wanted them to vacate the property they constructed a residential building in the suit property and they are residing there for the past three months prior to filing of the petition on 26-12-97 the first counter petitioner Sulaiman, who is the first respondent herein had trespassed into the property and demolished the house, regarding which a dispute arose and the matter was complained to the second respondent to the station House Officer Pallor Police Station, Mahe. The Station House Officer referred the matter to the Executive Magistrate under Section 145 of the Code of Criminal Procedure. The Executive Magistrate issued Notice under Section 145(1), Cr, P.C. directing all the counter petitioners i.e., petitioners 1 to 3 herein and the first respondent herein to appear before him on 7-1-98 at 3-00 p.m. to put their written statements. The parties appeared and petitioners herein submitted the written statement on 21-1 -98 itself. On the same day, the Executive Magistrate passed order to the effect that no settlement was arrived at between the parties regarding possession and directed the petitioners herein to surrender the vacant possession to the station House Officer, Pallor Police Station, Mahe and directed the Tashildar. Mahe to take vacant possession of the land in R.S. No. 36/10 and keep the land in his custody till the ownership of the land is decided by the competent Court. It is this order that is being questioned by the petitioners 1 to 3 herein.
4. Heard both sides. The learned Executive Magistrate has exercised his powers under Section 146(1) Cr. P.C. Section 146 Cr. P.C. is corollary to Section 145, Cr. P.C. It is only continuation of the proceedings under Section 145, Cr. P.C. The executive Magistrate is empowered under Section 146(1) Cr. P.C. to attach the subject of dispute in three cases, namely (i) if it is a case of emergency; (ii) if none of the parties was in possession or (iii) if no decision is possible as to the possession. Before exercising his powers under Section 146, Cr. P.C. It is incumbent upon the learned Executive Magistrate to observe the procedure laid down under Section 145(4) Cr. P.C. Section 145 recites as under :
145, Procedure where dispute concerned land or water is likely to cause breach of peace.
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute is 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 put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) to (4) ....
(4) the Magistrate shall then without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence if any as he thinks necessary, and if possible decide whether any and which, of the parties was, at the date of the order made him under Sub-Section (1) in possession of the subject of dispute.
Therefore, it is the duty of the learned Executive Magistrate to direct the parties to put forth their contentions by way of written statement and then to take evidence and make enquiry in order to ascertain if possible as to who are in possession. Unless and until the learned Executive Magistrate makes an enquiry contemplated under Section 145, Cr. P.C. i.e., unless he has examined his witness and considered the evidence produced by parties the learned Executive Magistrate has no jurisdiction to proceed under Section 146, Cr. P.C. Section 146, Cr. P.C. presupposes an enquiry by the Magistrate on the evidence recorded. After holding enquiry, if the Executive Magistrate comes to a conclusion that it is a case of emergency or none of the parties are in possession or no decision was possible as to possession, he should exercise his discretion to order attachment.
The impugned order does not contain any material to show whether on enquiry, the learned Executive Magistrate came to the conclusion that an emergency situation has arisen or that he was not in a position to find out as to who was in possession or none of the parties were in possession. The only ground for passing the impugned order is that no settlement could be arrived at between the parties regarding the ownership of the land. I do not think this would be an acceptable reason for the learned Executive Magistrate to exercise his powers under Section 146, Cr. P.C. This revision is allowed. The order passed by the learned Magistrate dated 21-1-98 is quashed. The learned Executive Magistrate is directed to call for written statement from both the parties, adopt the procedure laid down under Section 145(4) and then pass orders.
5. In view of the orders passed in the main Criminal revision, no orders are necessary in Crl. M.P. 1052 and 1053 of 1998 and therefore they are closed.