Point of law : Executive Magistrate after satisfying from the report of a Police Officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land, he shall make an order in writing, stating the grounds of his being so satisfied and require the parties to give an opportunity and thereafter power vested with the Magistrate to attach subject of dispute and to appoint the receiver

ORDER :

This writ petition is filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C., praying this Court to issue a writ of certiorari quashing the impugned order dated 05.02.2020 (Annexure ‘G’) passed by respondent No.3 in file No:REV/MAG/CR-/2019-20/533 and direct the respondents to drop Section 145 Cr.P.C., proceedings and pass such other order as this Court deems fit in the facts and circumstances of the case.

2. The petitioner in the main petition has contended that Sy.No.304 measuring 4 acres 38 guntas situated at Chitta Village, Bidar Taluk and District. The copy of the ROR from the year 1997-98 (Annexure ‘A’) filed along with petition, is clear that the land was a patta land and the entries in the name of petitioner’s husband in both column Nos.9 and 11. Earlier the survey number was given as 288 and subsequently re-numbered as Sy.No.304.

3. The learned counsel appearing for the petitioner would submit that earlier villagers have filed suit in O.S.No.12/2003 and the same was dismissed, wherein, the Civil Court has made an observation that out of 4 acres 38 guntas 2 acres of land was granted in favour of petitioner herein. The said judgment and decree has attained its finality. The learned counsel submits that in the said suit, the Deputy Commissioner as well as the Assistant Commissioner are parties to the proceedings. Now, the learned counsel would submit that at the instance of respondent Nos.7 to 9, the Tahasildar passed the impugned order under Section 146 of Cr.P.C. taking the possession of the property and appointing the receiver. The said order is in contravention of Section 145 of Cr.P.C.

4. The learned counsel also would submit that before passing the order under Section 146 of Cr.P.C. there must be a conditional order and no such conditional order was passed. The learned counsel also would submit that the land was granted to the petitioner’s husband in the year 2002 by the Assistant Commissioner and they are in possession of the suit land and in spite of the suit filed by the villagers was also dismissed again initiated proceedings under Section 146 of Cr.P.C. The very initiation of proceedings under Section 145 of Cr.P.C., is without jurisdiction and the Civil Court has already decided the issue involved between the parties.

5. The learned counsel in support of his arguments also relied upon the order passed by this Court in Crl.P.No.255/1978 D.D. 30.08.1978. Referring to this judgment, it is observed that when an Executive Magistrate decides to hold an enquiry under Section 145 of Cr.P.C., he is in law required to issue what is called a preliminary order under Section 145(1) of Cr.P.C. Without issuing such an order, he cannot, in law, proceed to hold an enquiry or take any further steps in regard to the enquiry. Section 145(1) of Cr.P.C., lays down that an Executive Magistrate can, in law, issue a preliminary order only after being satisfied on the basis of a report of a police officer or on the basis of other information received by him to the effect that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof. Unless such an order has been passed, the learned Magistrate cannot invoke Section 146(1) of Cr.P.C. and also the Court held that where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. It amounts to an abuse of process by the Tahasildar passing such an order and when there is no preliminary order under Section 145, the Tahasildar cannot pass an order under Section 146(1) taking the possession of property of the petitioner.

6. Per contra, learned counsel for respondent Nos.7 to 9 would submit that the land was granted in respect of Sy.No.287 and also the learned counsel would submit that Sy.No.287 and Sy.No.288 are distinct properties. The land grant made in favour of the petitioner is in respect of Sy.No.287 and not in resp