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1999 Supreme(AP) 796
Andhra Pradesh High Court
Judges : VAMAN RAO
Gaddam Rajaiah - Appellant
Versus
M.R.O.and Mandal Executive Magistrate, - Respondent
Decided On : 09-15-99
The pendency of a civil suit and the issuance of a temporary injunction order do not bar the Executive Magistrate from proceeding under Section 145, Cr. P. C., especially when the respondent claiming possession over the land is not a party to the civil suit. However, the Magistrate cannot direct the property to be taken into Government custody without recording an opinion that it is a case of emergency or that none of the parties is in actual possession.
Headnote:
LAND DISPUTE - SECTION 145, CR. P. C. - SECTION 146, CR. P. C. - PENDENCY OF CIVIL SUIT - INJUNCTION ORDER - TAKING POSSESSION OF LAND - EMERGENCY - ACTUAL POSSESSION - SUMMARY OF PROCEEDINGS UNDER SECTION 145, CR. P. C. AND SECTION 146, CR. P. C. AND THEIR APPLICATION IN THE CASE.
Fact of the Case:
A land dispute arose over S. No. 212 situated at Chinthapally village, leading to a report by the Sub Inspector of Police to the Mandal Revenue Officer requesting action under Section 145, Cr. P. C. The Mandal Revenue Officer initiated proceedings under Section 145, Cr. P. C. and directed the parties to file written statements of their respective claims. The petitioner challenged this order, arguing that a civil suit was pending in which he had obtained a temporary injunction order restraining the defendants from interfering with his possession.
Finding of the Court:
The court held that the pendency of a civil suit and the issuance of a temporary injunction order did not divest the Executive Magistrate of jurisdiction to proceed under Section 145, Cr. P. C., especially since the respondent who claimed possession over the land was not a party to the civil suit. However, the court found that the Magistrate had erred in directing the property to be taken into Government custody without recording an opinion that it was a case of emergency or that none of the parties was in actual possession.
Issues: 1. Whether the pendency of a civil suit and the issuance of a temporary injunction order barred the Executive Magistrate from proceeding under Section 145, Cr. P. C.? 2. Whether the Magistrate could direct the property to be taken into Government custody without recording an opinion that it was a case of emergency or that none of the parties was in actual possession?
Ratio Decidendi: 1. The court held that the pendency of a civil suit and the issuance of a temporary injunction order did not divest the Executive Magistrate of jurisdiction to proceed under Section 145, Cr. P. C., especially since the respondent who claimed possession over the land was not a party to the civil suit. 2. The court held that the Magistrate could not direct the property to be taken into Government custody without recording an opinion that it was a case of emergency or that none of the parties was in actual possession.
Final Decision: The court quashed the part of the order directing the property to be taken into Government custody, but allowed the proceedings under Section 145 of Cr. P. C. to continue.
( 1 ) IN this petition filed under Section 482, Cr. P. C. the order passed by the first respondent Mandal Revenue Officer dated 28-7-1999 passed under Section 145, Cr. P. C. in respect of the land dispute relating to S. No. 212 situated at Chinthapally village is sought to be quashed.
( 2 ) THE Mandal Revenue Officer has received a report from Sub Inspector of Police, Dandepally stating that the land bearing S. No. 212 measuring Ac. 6-02 guntas situated at Chinthapally village of Dandepally mandal was under dispute and there was possibility of breach of law and order in the village. and requested the Mandal Revenue Officer to initiate action under Section 145, Cr. P. C. and pass suitable orders.
( 3 ) IT may be mentioned that the learned Mandal Revenue Officer and Executive Magistrate while initiating action under Section 145, Cr. P. C. and directing the parties concerned to file written statements of their respective claims as to the fact of actual possession of the said land also directed taking over the land in question into Government s custody till further orders.
( 4 ) THIS order is sought to be quashed on the sole ground that civil suit in respect of the same land is pending in which the petitioner herein had obtained temporary injunction order restraining the defendants from interfering with his possession. It is stated that the petitioner herein filed a suit in O. S. 50 of 1996 on the file of Junior Civil Judge, Luxettipeta and obtained temporary injunction order on 23-7-1996 against the Respondent No. 3 and others. However, the said injunction order was vacated on 27-9-1996 and the petitioner filed C. M. A. No. 10 of 1996 on the file of Senior Civil Judge, Asifabad. The Civil Miscellaneous Appeal was allowed on 12-11-1997 and confirmed the order dated 23-7-1996 passed by the Junior Civil Judge, Luxettipeta. It is also pointed out that the Respondent No. 2 herein made an application for impleading himself in that suit but his application was dismissed and his revision petition against that order was also dismissed by the High Court on 15-6-1999. It is stated that the respondent No. 3 in collusion with the Respondent No. 2 are making hectic efforts to dispossess the petitioner. The contention is that when Civil Court passed a temporary injunction order there is no scope for taking proceedings under Section 145, Cr. P. C.
( 5 ) IN support of this, a decision of Division Bench of this Court in the case of Harijan Yellaiah v. State of Andhra Pradesh, (1980) (2) ALT 290 : (1981 Cri LJ 988) is relied upon. A decision of Rajasthan High Court in the case of Udmi Ram v. Dharam Singh, 1989 Cri LJ 1522 is also relied upon.
( 6 ) ON behalf of the second respondent a counter affidavit (in the stay vacate petition) has been filed. It is stated that the second respondent is the father of the petitioner herein and the respondent No. 3. It is claimed that the second respondent is in possession of the land in question as owner. He therefore filed a petition under Order 1 Rule 10 for impleading himself. His petition was dismissed. Crl. P. No. 79 of 1999 filed by him in the High Court was also dismissed with an observation that the injunction does not bind him. It is stated that his name has been recorded in the revenue records as person in possession of the said land. On this basis the contention of the learned counsel for respondents is that the dictum that when the Civil Court is seized of the matter and passed an injunction order proceedings under Section 145, Cr. P. C. cannot be taken does not apply to the facts of this case.
( 7 ) IT may be mentioned that the Division Bench of this High Court in the case of Harijan Yellaiah v. State of Andhra Pradesh (1981 Cri LJ 988) referred to above has not held that were Civil suit is pending between the parties the Executive Magistrate would be divested of jurisdiction to proceed under Section 145, Cr. P. C. In fact the following observations are significant. "the pendency of civi
