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Madurai Bench of Madras High Court
M. VENUGOPAL, J.
R. Ayyappan
Versus
The Sub-Divisional Magistrate/ Revenue Divisional Officer, Theni District & Others
Cr L.R.C.(MD)No.539 of 2012 & M.P.(MD) No.1 of 2012
Decided On : 31-01-2013
CRIMINAL REVISION PETITION - SECTION 145 OF THE CRIMINAL PROCEDURE CODE - DISPUTE CONCERNING LAND OR WATER LIKELY TO CAUSE BREACH OF PEACE - PRELIMINARY ORDER - FINAL ORDER - SATISFACTION OF MAGISTRATE - SERVICE OF ORDER - POSSESSION - JURISDICTION OF MAGISTRATE - CIVIL SUIT - INJUNCTION SUIT - TITLE OF PROPERTY - INTERIM ARRANGEMENT - SUFFICIENCY OF MATERIALS - DISCRETION OF MAGISTRATE - JUDICIAL REVIEW.
Fact of the Case:
The petitioner, Ayappan, filed a criminal revision petition challenging the final order passed by the Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District, under Section 145 (4) and (6) of the Criminal Procedure Code. The order directed the petitioner to hand over the encroached place to the third respondent, Arul Kumar, and authorized the police to take appropriate action for removing the encroachment. The petitioner contended that the impugned order was passed without application of mind, that the First Respondent had usurped the powers of the Civil Court, and that the preliminary order dated 8/6/2012 was silent on the date of dispossession and encroachment. The third respondent, Arul Kumar, submitted that the First Respondent had passed the impugned order after conducting a detailed enquiry and that the petitioner had unlawfully encroached upon the place in possession of the third respondent on 10/5/2012.
Finding of the Court:
The court held that the First Respondent had passed the impugned order after conducting a detailed enquiry and providing due opportunities to the parties. The court found that the First Respondent had exercised his discretion in a judicious manner while passing the impugned order and that the order did not suffer from any serious material irregularity or patent illegality. The court also held that the pendency of a civil suit between the parties would not fetter or preclude them from filing a complete and comprehensive civil suit seeking appropriate declaratory and other reliefs in respect of the title of the property in issue.
Issues: 1. Whether the First Respondent had passed the impugned order without application of mind and had usurped the powers of the Civil Court? 2. Whether the preliminary order dated 8/6/2012 was silent on the date of dispossession and encroachment? 3. Whether the First Respondent had conducted a detailed enquiry and provided due opportunities to the parties before passing the impugned order? 4. Whether the impugned order suffered from any serious material irregularity or patent illegality?
Ratio Decidendi: 1. The court held that the First Respondent had passed the impugned order after conducting a detailed enquiry and providing due opportunities to the parties. The court found that the First Respondent had exercised his discretion in a judicious manner while passing the impugned order and that the order did not suffer from any serious material irregularity or patent illegality. 2. The court held that the pendency of a civil suit between the parties would not fetter or preclude them from filing a complete and comprehensive civil suit seeking appropriate declaratory and other reliefs in respect of the title of the property in issue.
Final Decision: The court dismissed the criminal revision petition and the connected miscellaneous petition.
1. The Petitioner has projected the present Criminal Revision Petition as against the order dated 5/11/2012 in M.C.No.174 of 2012 passed by the Learned Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District.
2. The Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Theni, while passing the impugned order dated 5/11/2002 in M.C.No.174 of 2012 has inter alia observed that “presently, the activity/conduct of the Petitioner and Respondent, a dispute has arisen in respect of aforesaid place and therefore, there is a likelihood of 'Breach of Peace' has to be ascertained/found out and ultimately has come to a conclusion that the Petitioner/Arul Kumar has filed the Petition on 14/5/2012 and that the Respondent Ayappan on 10/5/2012 has committed trespass by entering into the petitioner's place with the help of hiredmen and the Police authorities will have to take appropriate action for displacing Ayappan from the encroached place and further that to restore possession to Arul Kumar etc., and also the Respondent will have to remove the rice mill machines from the encroached place where Arul Kumar has a right and further the Respondent Ayappan's and other men should not trespass into the property and accordingly, passed final orders as per Section 145 (4) and (6) of the Criminal Procedure Code.
3. Challenging the order passed by the Learned Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam dated 5/11/2012, the Petitioner, as an aggrieved person has focused the instant Criminal Revision Petition before this Court.
4. According to the Learned Counsel for the Petitioner, the impugned final order dated 5/11/2012 passed by the Revenue Divisional Officer-cum-Sub-Divisional Magistrate, is a continuation of the previous proceedings dated 6/1/2012 (order in M.C.No.279 of 2011/A.4) and further that the said earlier order dated 6/1/2012 passed by the First Respondent has been set aside by this Court in Crl.R.C.No.12 of 2012 dated 29/2/2012 in and by which the First Respondent/Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Periyakulam, Theni District has been directed to take appropriate action, if he deems fit, by following the procedure contemplated under Section 145 (1) of the Criminal Procedure Code.
5. The Learned Counsel for the Petitioner submits that the Petitioner is running a rice mill from 7/9/1989 and on 6/1/2012, the First Respondent has recognised the Petitioner's possession and from the year 1989 for about 22 years, till the final orders have been passed, the Petitioner has been in possession of the place (and in fact, the Petitioner is a 'B' party) and moreover, in the instant case on hand, the First Respondent has usurped the powers of Civil Court and has observed in the impugned order dated 5/11/2012 that the property in question belongs to the Third Respondent/Arul Kumar.
6. Continuing further, the Learned Counsel for the Petitioner contends that as per ingredients of Section 145 of the Criminal Procedure Code, the First Respondent is to see as to who is in possession on the date of passing of the impugned order and also that he cannot order restoration of possession of drawing of the proceedings, if it is more than two months old.
7. That apart, the Learned Counsel for the Petitioner submits that in the impugned order of the first respondent dated 5/11/2012, there are six references in all and in the said references, there is no reference about the passing of the preliminary order and reference to the Petition dated 14/5/2012 of the Third Respondent is a new fact. Also, in the entire final order passed by the First Respondent dated 5/11/2012, there is no reference about the preliminary order being passed and also no reference about the extent of occupation. Furthermore, in the impugned order of the First Respondent, there is no specific date of dispossession and encroachment and in fact, the First Respondent has admitted that the Revision Petitioner
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