Full Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.03.2014 Coram THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.R.C.No.1427 of 2013 and M.P.No.1 of 2013 A.K.Swaminathan .Petitioner versus State rep.
by District Revenue Officer (DRO) Erode Collector Office, Erode.Respondent Prayer:- Criminal Revision filed under Section 397 r/w 401 Cr.P.C.to call for the records from the respondent and set aside the order made in Na.Ka.No.13390/2013/C3 dated 30.9.2013 by the respondent.
For Petitioner : Mr.S.Sivakumar For Respondent : Mr.C.Iyyapparaj, GA (Crl.
Side) ORDER
What is challenged herein is the order of the respondent District Revenue Officer, thereby transferring the joint patta into one of the patta in the name of the temple by deleting the name of the individual.
Such order is passed in the proceedings initiated under Section 147 Cr.P.C.on the basis of the representation dated 2.5.2013 of the Executive Officer, Selliandiamman Temple, Andithur Circle.
2.The subject matter of Section 147 Cr.P.C proceedings is the landed property, which according to the petitioner, has been in possession and enjoyment of the petitioner and his family members by constructing house and digging well and doing cultivation and also conducting poojas to Selliandiamman Temple at Thani Village, Bhavani Taluk.
One S.Kolanda Andi, ancestor of the petitioner, was in-charge and management of the property, which was granted to him as a personal grant under Minor Inam lands.
The petitioner claims ryotwari patta in respect of the property and the same was granted by the Settlement Tahsildar, after abolition of minor inam.
While so, the Executive Officer of Selliandiamman Temple sought to disturb their possession, which compelled the petitioner to file OS.No.336/2011 before the Principal District Munsif, Bhavani against the temple authorities in H.R & C.E.Department.
Pending suit, the Executive officer of the temple moved the respondent District Revenue Officer, Erode to remove the name of the petitioner's elder and to include the name of the temple, in respect of the property in question.
The respondent, on receipt of the same, initiated section 147 Cr.P.C proceedings and issued summons to the parties and thereafter passed the impugned order, thereby removing the name of the petitioner's elder and issued patta in the name of the temple in question.
Aggrieved against the same, the petitioner filed this criminal revision before this court.
3.The impugned order is seriously challenged by the petitioner on the following grounds; (i)the respondent authority has no jurisdiction to initiate any proceedings himself, regarding the existence of dispute about the right of use of land or water, without issuing summons to the parties, which is likely to cause breach of peace; (ii)the impugned order without passing final order and without rendering any finding about the existence of dispute regarding the right of user of land or water, is legally not permissible and (iii)the initiation of section 147 Cr.P.C proceedings during the pendency of parallel civil court proceedings is per se arbitrary, illegal and contrary to law.
4.Heard the rival submissions made on both sides.
5.In order to appreciate the objection raised on the side of the petitioner, the relevant documents to be looked into are the copy of the summons issued to the petitioner and the impugned order passed by the respondent.
The summons proceeds to say that the proceedings were initiated under section 147 Cr.P.C on the basis of the representation submitted by the Executive Officer of the temple for transferring the patta in respect of the temple land from the name of the individual to the name of the temple.
The summons did not contain any averment regarding the existence of any dispute about the right of use of land or water, claimed easementary or otherwise and the grounds on which the competent authority/District Revenue Officer arrived at such satisfaction in respect of such dispute.
This section of law acquainted with the proceedings initiated under Section 145 Cr.P.C, wherein also similar preliminary order is required to be passed before initiating any proceedings in respect of land or water.
This aspect is dealt with by the learned brother judge of this court in the decision reported in 1954 MWN Cr.
49 (Pakamaraja Naickar and others v.
Chidambara Nadar and another) wherein, this Court referred to the judgment reported in (1914) 15 Cr.LJ559(Subbaraman Aiyer v.
Mariya Pillai).in and under which, it is observed that the Magistrate's proceedings are void ab initio by reason of his failure to comply with the requirements of clause 1 of Section 145 Cr.P.C, which 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 statement.
It is only in this way that proceedings under Section 145 can be initiated.
The provision of law is imperative and failure to comply with it destroys the Magistrate's jurisdiction.
6.Similar view was expressed by this Court in the authority reported in (1936) MWN647Crl.131 (Mariasusai Udayan v.
Hajee Mahamud Azezudeen Sahib Bahadur).wherein it is held that ".unless there is a preliminary order under section 145(1) Cr.P.C, the Magistrate has no jurisdiction to pass any order under section 145 (6)Cr.P.C.There was nothing to prevent the learned Sub Divisional Magistrate from drawing up a preliminary order under section 145(1) Cr.P.C on the date on which he decided that the case was one properly falling under section 145 Cr.P.C.The importance of this is that the question of possession has to be decided with reference to the date of the preliminary order and if there is no preliminary order, one question which the Magistrate has to decide cannot be decided".As rightly argued by the learned counsel for the petitioner, no such preliminary order is passed in the present case.
The summons does not even mention about the existence of the dispute and the nature of the dispute, which is such to lead to breach of peace.
Hence, the entire proceedings initiated under section 147 Cr.P.C which acquaint with Section 145(1) Cr.P.C shall be held to be void ab initio.
7.The next aspect to be considered herein is the power of the authority concerned to pass the final order, thereby transferring patta in respect of the land in question, from the name of the individual to the name of the temple.
As per Section 147(2) the Magistrate shall on the appearance of the parties, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible, decide whether such right exists and the provisions of Section 145 shall so far as may be, apply in the case of such inquiry.
Section 147 (3) provides if it appears to such magistrate that such rights exit, he may make an order prohibiting any interference with the exercise of such right, including in a proper case, an order for the removal of any obstruction in the exercise of any such right, as such, the combined reading of sub sections 2 and 3 of section 147 Cr.P.C would go to show that the Executive Magistrate concerned, before making any order under sub section 3, shall decide the existence of dispute regarding the right of use of land or water and only when the Magistrate is of the opinion that such right exists, the Magistrate has power to proceed with the order for the purpose of removal of interference with the exercise of such right.
8.Whereas in the present case, no such finding regarding existence of right in favour of the temple is recorded.
The operative portion of the final order simply proceeds to say that the name of the individuals were included without any basis, as such, the name of the individuals should be deleted and patta should be issued in the name of the temple.
The same Executive Magistrate in the earlier portion of the order refers to the possession and enjoyment of the property in the hands of the petitioner.
Even assuming it to be true that the petitioner and his family members are in unlawful possession and enjoyment of the same, the Executive Magistrate ought to have directed the parties to approach the civil court to establish their right and the jurisdiction of the Magistrate is not wider enough to cancel the patta standing in the name of the individuals and issued patta in the name of the temple authorities.
Without directing the parties to initiate independent proceedings for change of patta before the appropriate authority, the respondent District Revenue Officer, is not vested with any power to transfer the patta in the proceedings initiated under section 147 Cr.P.C.The power vested on the authority under section 147 Cr.P.C is very limited to the extent of preventing any interference in the right of use of land or water and nothing more.
In my considered view, the respondent authority has certainly exceeded his jurisdiction in passing one such order that too in Section 147 Cr.P.C proceedings, which is not duly initiated in accordance with the procedure laid down under law.
9.Viewing from any angle, the impugned order is void ab initio and is legally impermissible and is hence liable to be set aside.
10.In the result, this criminal revision is allowed by setting aside the impugned order dated 30.9.2013 passed by the respondent herein.
Consequently, connected miscellaneous petition is closed.
rk 14.03.2014 Index:Yes/No Internet:Yes/No To 1.District Revenue Officer (DRO) Erode Collector Office, Erode.
2.The Public Prosecutor, High court, Madras-104.
K.B.K.VASUKI, J.
rk Crl.R.C.No.1427 of 2013 14.03.2014