@JUDGMENTTAG-ORDER
1. The instant Criminal revision is against the order passed by the Sub Division Magistrate-cum-Revenue Divisional Officer, Villupuram on 30.04.2000 u/s 145(1) of the Code of Criminal Procedure.
2. This Criminal Revision has arisen in this way:-
The petitioner herein is the Proprietor of M/s.Meena Granite Industries. M/s. Meena Granite Industries owned Survey Nos.31/7, 30/1, 30/2, 30/4, 31/9, 37/2, 38/2 and 38/3 in Siruvannur Village. The petitioner also owned lands in Survey Nos. 12/1B, 7/2B and 7/4 in Kunnan Village. Siruvannur and Kunnan Villages lie in Vannur Taluk, Villupuram District. M/s. Meena Granite Industries had applied for quarrying granites in these survey lands. The third respondent herein M/s.Sokab Products Pvt. Limited has experience in granite quarrying and therefore, on 20.10.1992, M/s. Meena Granite Industries and M/s. Sokab Products Pvt. Limited entered into an agreement, whereunder M/s. Meena Granite Industries granted lease to M/s. Sokab Products Pvt. Limited to quarry the granite blocks for ten years with an option to renew the lease period. According to the M/s. Sokab Products Pvt. Limited, possession was also delivered to them. But, M/s. Meena Granites Industries contends that the agreement was entered into not with a view to grant lease or licence to quarry granite, but only to facilitate M/s. Sokab Products Pvt. Limited to obtain credit facilities from the Bank. According to M/s. Sokab Products Pvt. Limited, M/s. Meena Granite Industries also gave authorisation to them to represent to the authorities on behalf of M/s. Meena Granite Industries in seeking necessary permission and renewals for quarrying granites.
After agreement was entered into on 13.12.1992 and on 26.07.1993, permission granted by the Government to quarry the granite expired in relation to survey Nos.31/7, 30/1, 30/2 and 30/4 of Siruvannur Village and Survey Nos.12/1B, 7/2B in Kunnan Village. M/s. Meena Granite Industries filed two writ petitions seeking extension of time and accordingly they also preferred W.M.P.Nos. 6824 of 1994 seeking permission to quarry the granites and this Court granted permission on 25.4.1994.
According to the third respondent herein, namely, M/s. Sokab Products Pvt. Limited, in pursuance of that permission, they were quarrying the granites in Survey Nos. 31/7 and 7/1. The petitioner herein caused obstruction to their carrying on quarry work. Therefore, M/s. Sokab Products Pvt. Limited filed a suit in O.S.No.278 of 1994 on the file of the Principal District Munsif Court, Dindivanam against M/s. Meena Granite Industries for permanent injunction restraining M/s. Meena Granite Industries from interfering with the plaintiff''s (third respondent herein) peaceful possession and enjoyment of the suit schedule mentioned properties till 19.10.2002, i.e., the date on which the agreement comes to an end. Along with the suit, M/s. Sokab Products Pvt. Limited filed I.A.No.1004 of 1994 seeking interim injunction. The learned Principal District Munsif, Dindivanam did not grant interim injunction, but adjourned the matter to 19.4.1994. Meanwhile, M/s. Sokab Products Pvt. Limited filed Writ Petition No.8717 of 1994 on the file of this Court seeking police protection for quarrying. They also filed W.M.P.No.13200 of 1994 seeking interim police protection. This Court ordered police protection on 4.5.1994. But, M/s. Meena Granite Industries filed W.M.P.No.14137 of 1994 for vacation of the interim order passed in W.M.P.No.13200 of 1994. Accordingly, the interim order for police protection was vacated. As against that order, M/s. Sokab Products Pvt. Limited preferred Writ Appeal No.774 of 1994, but that writ appeal was dismissed on 7.6.1994.
3. Meanwhile, the learned Principal District Munsif, Dindivanam dismissed I.A.No.1004 of 1994 wherein M/s. Sokab Products Pvt. Limited sought for interim injunction restraining M/s. Meena Granite Industries from interfering with their peaceful possession and enjoyment. The order was passed on 17.8.1994. As against that order, M/s. Sokab Products Pvt. Limited preferred C.M.A.No.36 of 1994 before the learned Sub Judge, Dindivanam. A petition in Transfer C.M.P.No.13847 of 1994 was filed for transfer of that C.M.A. to the file of the City Civil Court, Madras. Along with Transfer C.M.P., C.M.P.No.13848 of 1994 was filed seeking for ad-interim injunction. This Court granted ad-interim injunction on 25.9.1994. Thereafterwards, the Transfer C.M.P. was allowed on 25.10.1994. C.M.A.No.36 of 1994 was transferred from the file of the Sub Judge, Dindivanam to the file of the II Additional Judge, City Civil Court, Madras and was renumbered as C.M.A.No.161 of 1994. While passing order in C.M.A.No.161 of 1994, the learned Additional Judge, City Civil Court dismissed all the interim petitions and allowed C.M.A.161 of 1994 and thus granted interim injunction against M/s. Meena Granite Industries and allowed M/s. Sokab Products Private Limited to carry on quarry work. Aggrieved by the order passed in C.M.A.No.161 of 1994, M/s. Meena Granite Industries preferred C.R.P.No.2507 of 1995 and also C.M.P.No.13739 of 1995 seeking interim suspension of the order passed in C.M.A.No.161 of 1994. S.S. Subramani, J. allowed C.M.P.No.13739 of 1995 and granted interim suspension of the order passed in C.M.A.No.161 of 1994. Later, C.R.P.No.2507 of 1995 itself was taken for enquiry and after enquiry, the learned Judge allowed the C.R.P. on 8.12.1995 and thus restored the order of dismissal in I.A.No.1004 of 1994 on the file of the Principal District Munsif, Dindivanam.
4. Meanwhile, as against the order passed in W.P.Nos.4270 and 4271 of 1994, wherein the petitioner herein was allowed to quarry granite, the Government filed W.A.No.812 of 1994. A Division Bench of this Court ordered the Government to reconsider the request of M/s. Meena Granite Industries seeking permission to quarry. The authorities reconsidered that request and passed orders on 25.3.1995 granting permission to quarry granites for a period of ten years. The lease deed was executed on 12.5.1995. M/s. Meena Granite Industries started the quarrying work, but during July, 1999, M/s. Sokab Products Pvt. Limited started interfering with their quarrying operations. According to the petitioner herein, on 11.9.1999, M/s. Sokab Products Pvt. Limited tried to stop the work of quarry carried on by M/s. Meena Granite Industries. A complaint was preferred on 24.12.1999. The concerned Deputy Superintendent of Police warned the Executive Director of M/s. Sokab Products Pvt. Limited not to indulge any such activities. According to the petitioner, in spite of that, on 8.1.2000, the third respondent herein, M/s. Sokab Products Pvt. Limited sent local persons to interfere with loading operation of the granite blocks regarding which a complaint was preferred on 9.1.2000, but it was of no avail. On 8.2.2000, the concerned authorities granted permission to M/s. Meena Granite Industries to transfer granite blocks. But when M/s. Meena Granite Industries tried to load the blocks in lorries, persons belonging to M/s. Sokab Products Pvt. Limited prevented them from doing so on 9.2.2000. Subsequently, on 13.3.2000, M/s. Meena Granite Industries obtained transport permit to transport granite blocks. But when the work was carried on 16.3.2000, the persons belonging to M/s. Sokab Products Pvt. Limited attacked the staff of M/s. Meena Granite Industries and took away granite blocks and hid blocks under the ground. Therefore, M/s. Meena Granite Industries preferred W.P.No.6232 of 2000 for police protection to them, their employees and the vehicles. They had also filed W.M.P.No.9308 of 2000 seeking interim reliefs. On 18.4.2000, interim police help was ordered for removing the quarry materials. The petitioner and third respondent herein gave complaints and counter complaints before the Mylam Police Station. On the basis of which, the concerned Inspector registered crimes against each other. Regarding the continuous dispute that was prevailing between M/s. Meena Granite Industries and M/s. Sokab Products Pvt. Limited regarding quarrying operation, the concerned Inspector of Police, apprehended that there may be breach of peace, referred the matter to the Executive Magistrate, Vannur for instituting proceedings u/s 145, Cr.P.C.
5. The learned Executive Magistrate, namely, the Tahsildar, Vannur took the matter on file in M.C.No.1 of 2000. On 1.3.2000, the learned Executive Magistrate the following order:-
"Whereas it has been made to appear to me I am satisfied that a dispute likely to cause a breach of peace exists concerning the above properties situated within the local limits of my jurisdiction, I do hereby require you to attend at my court in person or pleader on 9.3.2000 at 11.00 A.M. at Taluk Office, Vannur and to put in written statement of your claim in respect of fact of actual possession of the properties aforesaid and also such documents or to adduce by putting in affidavit the evidence of such persons you relay upon in support of such claim."
6. Subsequently, the Revenue Divisional Officer passed the following order on 30.4.2000:-
"M/s. Sokab Products Pvt. Limited and Meena Granites Industries Siruvannur Village are engaged in excavation of black granites in S.No.31/7 of Siruvannur and S.No.7/1 of Kunnan Village and their sale. A few days back a dispute arose between them concerning the above lands, with the result there was law and order problem. The Tahsildar, Vannur who enquired into the matter has reported that if the Meena Granites, Siruvannur is suspended from doing quarry work till the disposal of the suit in O.S.No.278 of 1994 pending in the Court of the District Munsif, Dindivanam there would not be any law and order problem. I concur with the views of the Tahsildar that law and order problem would arise if the quarrying work is allowed to be carried out by M/s. Meena Granites Industries, Siruvannur. I therefore, order u/s 145(1) of Cr.P.C., that M/s. Meena Granite Industries, Siruvannur shall not carry out quarrying work in the disputed land until further order."
7. Now, the petitioner herein is questioning the correctness of the order on the following grounds:-
(i) The Civil Court has already decided the issue by the order in C.R.P.No.2507 of 1995 and the Executive Magistrate has no jurisdiction to institute proceedings u/s 145, Cr.P.C.;
(ii) The learned Executive Magistrate had no jurisdiction to pass orders, because the disputes were not regarding possession of land, but contents of mines;
(iii) What is claimed by the third respondent is right to claim possession and not possession, for the Executive Magistrate to interfere; and
(iv) The Executive Magistrate has not found whether there is breach of peace. In fact there had been no breach of peace, but only criminal trespass by person employed by the third respondent herein.
8. On the other hand, the third respondent had contended that the learned Executive Magistrate has passed only preliminary order and the petitioner can put forth his objection at the time of the final enquiry.
9. Heard both the sides. The order passed by the learned Executive Magistrate (Tahsildar) extracted supra would go to show that the learned Executive Magistrate has passed the order u/s 145(1), Cr.P.C. Section 145(1), Cr.P.C. recites as 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 officer 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."
10. In
"Proceedings u/s 145 are purely of a summary nature and it is only very rarely that the High Court interferes with the orders made under the said section unless the orders on the face of it appear to have been passed by the Magistrate not in conformity with the provisions laid therein. If gross irregularity in the proceedings is shown to have been committed by the Magistrate, the High Court will certainly interfere and set aside the order passed by the trial Magistrate."
11. In P. George v. M. Narayanan, 1984 Cri.L.J.574, a single Judge of this Court has also pointed out as under:-
"Ordinarily, orders passed u/s 145 are not lightly disturbed, it is only in exceptional cases such a thing is being done. The reason is that the main purpose of the proceedings is to maintain peace and secondly, whoever is aggrieved by the order so made has recourse to get remedy in a Civil Court. Orders passed u/s 145 are tentative subject to the rights of the parties being determined by a Civil Court."
12. It is settled law that the Executive Magistrate has jurisdiction to take action u/s 145, Cr.P.C. merely on the police report, if the report sets out the matter of dispute, the cause of dispute, its nature, the apprehension that unless the action is taken the breach of peace will ensue.
13. In Subbarama Aiyar v. Mariya Pillai, AIR 1914 Mad. 78, it has been pointed out as under:-
"On the other hand it seems to me that the Magistrate''s proceedings are void ''ab initio'' by reason of his failure to comply with the requirements of Cl.(1) of Section 145, Cr.P.C. This provides that where a Magistrate is satisfied that a dispute exists regarding any land or water or the boundaries thereof within the local limits of his jurisdiction, he shall record a formal order in writing setting forth the grounds of his being so satisfied and requiring the disputing parties to attend his Court and file written statements. It is only in this way that proceedings u/s 145 can be initiated. The provision of law is imperative and failure to comply with it destroys the Magistrate''s jurisdiction."
This view has been approved by Burn, J. in
14. It is settled law that if the Magistrate is to dismiss the proceedings u/s 145, Cr.P.C., then it is not necessary to issue a preliminary order, but if the Magistrate is to further proceed, accepting that the ingredients required u/s 145, Cr.P.C. are made out, preliminary order would become mandatory.
15. In the instant case, it appears, the preliminary order was issued by the Tahsildar, Vannur. In the preliminary order, the teamed Executive Magistrate has not set out anything about the matter of dispute, cause of dispute, its nature and without setting out all these things, the mere recital in the order that there is apprehension that unless action is taken, breach of peace shall ensue, cannot at all be held to be a subjective satisfaction by the Executive Magistrate, who issued the preliminary order. The preliminary order is as bald as it could be. The final order passed by the Revenue Divisional Officer is also a very bald order. In that final order, the learned Sub Division Magistrate-cum-Revenue Divisional Officer has referred to the preliminary order passed by the learned Executive Magistrate (Tahsildar) Vannur. He did not mention as to what are the contents of the report sent by the Executive Magistrate (Tahsildar), Vannur. He did not examine any of the witnesses. He did not peruse any of the documents. The Sub Division Magistrate-cum-Revenue Divisional Officer had not even stated that there is apprehension that unless action is taken, breach of peace shall ensue. If an impending breach of peace has not been made out, it cannot be said that the learned Magistrate has passed an order u/s 145, Cr.P.C. I am satisfied that the order passed by the learned Executive Magistrate suffers fundamental illegalities and therefore, it has to be set aside. In this view of the matter, I feel, it is not necessary to go through the other grounds raised by the petitioner herein.
16. In the result, this criminal revision is allowed. The order passed by the Sub Division Magistrate and Revenue Divisional Officer, Villupuram, dated 30.4.2000 passed in R.C.A4/3125/2000 is set aside. Consequently, Crl.M.P.Nos.3923 and 4221 of 2000 are closed.
