Madras High Court
Ramesh vs The Revenue Divisional Officer on 29 January, 2021
Crl.R.C.No.845 of 2020
and Crl.MP.No.5941 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2021
CORAM:
THE HON'BLE Mr. JUSTICE P.VELMURUGAN
Criminal Revision Case No.845 of 2020
and Crl.MP.No.5941 of 2020
Ramesh ... Petitioner
..vs..
1.The Revenue Divisional Officer,
Salem District,
District Collector Buildings,
Salem.
2.The Tahsildar,
Salem Taluk,
Salem District.
3.Prabu ... Respondents
Criminal Revision Case filed under Section 397 read with 401
Cr.P.C, to call for the entire records relating to Na.Ka.No.2632/2020/A2
dated 31.08.2020 on the file of the Revenue Divisional Officer, Salem,
the respondent No.1 herein and to set aside the same.
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For Petitioner : Mr.Y.Prakash
For Respondents : Mr.R.Surya Prakash
Government Advocate (Crl.Side)
for R1 and R2
R.Kannan for R3
ORDER
The Revenue Divisional Officer, Salem, the first respondent herein
initiated proceeding dated 31.08.2020 against the petitioner under
Section 145 Cr.P.C. Aggrieved over the said proceedings, the petitioner
has filed the present revision.
2.1 The case of the petitioner is that, he is in possession and
enjoyment of a patta land in S.No.58/5B of Paramarathupatti Village
along with other lands. He acquired title over the suit property by way of
settlement deed from his mother and ever since he is in absolute
possession and enjoyment of the said property. The third respondent
submitted a representation before the second respondent stating that the
petitioner by putting up stones and superstructure with tin sheet
obstructed the pathway and in view of that there is a likelihood of arising
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law and order problem. The second respondent in turn submitted a report
to the first respondent, based on which, the first respondent initiated
proceedings dated 31.08.2020 under Section 145 Cr.P.C. Though in the
order passed by the first respondent indicated that the second respondent
has pointed out the pendency of civil cases between the parties in
O.S.No.214 of 2020 and O.S.No.269 of 2020, respectively, the first
respondent without application of mind and without conducting any
enquiry by affording opportunity to the petitioner, passed the impugned
order and also directed the petitioner to remove the obstructions and to
maintain the status quo till the disposal of O.S.No.214 of 2020.
2.2 Further, the case of the petitioner is that in his patta land there
is no pathway and hence, the question of removal of obstacles does not
arise. The first respondent has given a finding as if an extraordinary
situation of law and order problem exists and in the guise of the same,
the said order has been passed. However, absolutely, there is no law and
order problem and even the third respondent has not lodged any
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complaint before the police. It is further stated that without furnishing a
copy of the report to the petitioner, the second respondent submitted a
report before the first respondent. Only under the guise of the complaint
received from the third respondent as if there is an apprehension of
breach of peace and disturbance to public tranquility in view of the
alleged dispute between the parties, the first respondent initiated
proceedings under Section 145 of Criminal Procedure Code. Further, the
report of the second respondent has not even satisfied himself about its
prima facie case and failed to pass a Preliminary Order under Section 145
Cr.P.C., on the other hand he passed a final order. The said order does
not reflect the grounds of satisfaction of the first respondent for initiating
the proceedings and pass final order, which is unsustainable either on
facts or in law. If any right of pathway aroses, the same would be pleaded
and established before the Civil Court. However, the first respondent
without taking note of the said fact and without issuing any notice to the
petitioner, passed the final order. Hence, the order is against the
principles of natural justice and the proceedings initiated by the first
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respondent is prejudiced to the interest of the petitioner.
3.The learned counsel for the petitioner would submit that Survey
No.58/5B of Paramarathupatti Village is a patta land of the petitioner.
The third respondent has demanded to purchase the land, but, the same
was refused by the petitioner and hence, the third respondent caused
disturbance to the petitioner. Therefore, the petitioner filed a suit in
O.S.No.214 of 2020 before the District Munsif, Salem against the third
respondent and others. During the pendency of the said suit, the third
respondent and their men filed a suit in O.S.No.269 of 2020 on the file of
the District Munsif, Salem against the petitioner seeking for mandatory
injunction and he has not able to obtain any interim order, hence, he
approached the first respondent and obtained orders. The learned counsel
would further submit that during the pendency of the civil suit, the first
respondent has no power or jurisdiction to initiate proceedings and even
assuming that he has got power and without issuing any notice and not
even passing the preliminary order straight away initiated proceedings
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under Section 145 Cr.P.C., which is illegal and unsustainable and the
same is liable to be set aside.
4.1 The learned counsel for the third respondent would submit that
the third respondent and their family members have a right to use the
pathway. However, the petitioner obstructed the same and hence, they
made a complaint before the police. Subsequently, the second
respondent/Tahsildar visited the disputed place and enquired the parties
in and around place and submitted a report to the first respondent stating
that there is a likelihood of law and order problem. Therefore, in order to
avoid the law and order problem, the first respondent after applying his
mind passed the order of status quo till the disposal of the civil suit in
O.S.No.214 of 2020 and the same warrants no interference of this Court.
4.2 The learned counsel would further submit that the first
respondent assuming that the order under challenge is a final order and
contended that without passing of the preliminary order, final order has
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been issued, which is not illegal and there is no prejudice caused to the
petitioner. Further, both the parties can maintain status quo as prevailing
from the date of proceedings.
5.In support of his contention the learned counsel for the third
respondent by placing reliance on the decision of the Hon'ble Full Bench
of this Court in the case of A.Dhaveethu Vs. The District Collector and
others [Crl.R.C.(MD).No.863 of 2011] submitted that the failure of an
Executive Magistrate to pass a preliminary order under Section 145(1)
Cr.P.C is a mere irregularity and will not affect his jurisdiction and
considering the nature of power vested on the Executive Magistrate
under Section 145 Cr.P.C, no prejudice will be caused to parties.
Therefore, the contention raised by the learned counsel for the petitioner
that the first respondent failed to issue preliminary order under Section
145 Cr.PC and passed the final order, even without conducting the
enquiry and also directed the petitioner to remove the obstructions in his
land and maintain status quo till the disposal of the suit is not correct.
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Since it is not a final order, it is only a interim order i.e. till the disposal
of the suit both the parties shall maintain status quo. Therefore, there is
no illegality or infirmity in the order passed by the first respondent and
hence, the same is liable to be dismissed.
6. Heard the learned counsel on either side and perused the
materials available on record.
7.Admittedly, there is a civil dispute between the petitioner and the
third respondent and others. According to the petitioner, the said
disputed pathway is in his patta land in Survey No.58/5B of
Paramarathupatti Village, but, the third respondent and their men tried to
disturb them. Hence, the petitioner approached the Civil Court, whereas,
the third respondent approached the police, but, there is no criminal case
registered as against the petitioner. Subsequently, the third respondent
and others filed a suit in O.S.No.269 of 2020 and the same is pending. It
is also to be noted that both the parties have approached the Civil Court
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separately against each others. The first respondent without applying his
mind and without any satisfactory materials passed the impugned order.
Further, the third respondent not disputed the fact that the suit in
O.S.No.214 of 2020 was filed against the third respondent and others and
the third respondent has also filed a suit in O.S.No.269 of 2020 against
the petitioner, which were pending before the Civil Court. Since the
third respondent approached the police, the police approached the
Tahsildar/2nd respondent herein and they filed the report before the first
respondent. Based on which, the first respondent passed the impugned
order.
8.It is well settled proposition of law, when a civil suit is pending
before the Civil Court, the Revenue Divisional Officer has no
jurisdiction to initiate proceedings under Section 145 Cr.P.C, even if, he
has already proceeded. In this case, the parties have already disputed
their respective possession before the Civil Court. Further, in the
judgment cited supra also referred various decisions of the Hon’ble
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Supreme Court the relevant paragraphs are extracted hereunder :
''Cannot move forums parallelly:
36.In Ram Sumer Puri Mahant Vs. State of
U.P. [1985 (1) SCC 427], the Supreme Court
also held that after filing a civil suit, it is not
open to the parties to initiate proceedings
under Section 145 of the Code :-
''When a civil litigation is pending for
the property wherein the question of
possession is involved and has been
adjudicated, we see hardly any
justification for initiating a parallel
criminal proceeding under Section 145
of the Code. There is no scope to doubt
or dispute the position that the decree of
the Civil Court is binding on the
criminal court in a matter like the one
before us. Counsel for respondents 2-5
was not in a position to challenge the
proposition that parallel proceeding
should not be permitted to continue and
in the event of a decree of the Civil
Court, the criminal court should not be
allowed to invoke its jurisdiction
particularly when possession is being
examined by the civil court and parties
are in a position to approach the civil
court for interim orders such as
injunction or appointment of receiver for
adequate protection of the property
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during dependency of the dispute.
Multiplicity of litigation is not in the
interest of the parties nor should public
time be allowed to be wasted over
meaningless litigation. We are,
therefore, satisfied that parallel
proceedings should not continue and the
order of the learned Magistrate should
be quashed. We accordingly allow the
appeal and quash the order of the
learned Magistrate by which the
proceeding under Section 145 of the
Code has been initiated and the property
in dispute has been attached. We leave it
open to either party to move the
appellate judge in the civil litigation for
appropriate interim orders, if so advised,
in the event of dispute relating to
possession.''
37. In Prakash Chand Sachdeva Vs. State
[1994 (1) SCC 471], the Supreme Court held
that if the party asserting possession or title
moves a civil court, then normally, that party
is precluded from moving the Executive
Magistrate under Section 145 of the Code. It
was held as follows:-
''A suit or remedy in civil court
for possession or injunction normally
prevents a person from invoking
jurisdiction of the criminal court as
observed by this Court in Ram Sumer
Puri Mahant Vs. State of U.P.
particularly when possession is being
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examined by the civil court and parties
are in a position to approach the civil
court for interim orders such as
injunction or appointment of receiver
for adequate protection of the property
during pendency of the dispute.
Multiplicity of litigation is not in the
interest of the parties nor should public
time be allowed to be wasted over
meaningless litigation'. The normal
rule is as stated by the Court in Puri
case. But that was a suit based on title.
And that could be decided by civil
court only. That ratio cannot apply
where there is no dispute about title.
When claim or title are not in dispute
and the parties on their own showing
are co-owners and there is no partition
one cannot be permitted to act forcibly
and unlawfully and ask the other to act
in accordance with law. Where the
dispute is not on the right to
possession but on the question of
possession the Magistrate is
empowered to take cognizance under
Section 145 Cr.P.C.''
38. In Amresh Tiwari Vs. Lalta Prasad
Dubey {2000 (4) SCC 440}, the Supreme
court once again considered Ram Sumer Puri
Mahant and observed as under:-
''We are unable to accept the
submission that the principles laid
down in Ram Sumer's case would only
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apply if the civil Court has already
adjudicated on the dispute regarding
the property and given a finding. In our
view Ram Sumer's case is laying down
that multiplicity of litigation should be
avoided as it is not in the interest of the
parties and public time would be
wasted over meaningless litigation. On
this principle it has been held that
when possession is being examined by
the civil Court and parties are in a
position to approach the civil Court for
adequate protection of the property
during the pendency of the dispute, the
parallel proceedings i.e. Section 145
proceedings should not continue.''
''We clarify that we are not
stating that in every case where a civil
suit is filed, Section 145 proceedings
would never lie. It is only in cases
where civil suit is for possession or for
declaration of title in respect of the
same property and where reliefs
regarding protection of the property
concerned can be applied for and
granted by the civil court that
proceedings under Section 145 should
not be allowed to continue. This is
because the civil court is competent to
decide the question of title as well as
possession between the parties and the
orders of the civil Court would be
binding on the Magistrate.''
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39. Even in its subsequent decision in Mahar
Jahan Vs.State of Delhi {2004 (13) SCC
421}, the Supreme Court made a similar
observation, which is as follows:-
"4. It is not disputed by the
learned counsel for the parties that this
very property, which is the subject-
matter of these criminal proceedings, is
also the subject-matter of the civil suit
pending in the civil court. The question
as to possession over the property or
entitlement to possession would be
determined by the civil court. The
criminal proceedings have remained
pending for about a decade. We do not
find any propriety behind allowing these
proceedings to continue in view of the
parties having already approached the
civil court. Whichever way proceedings
under Section 145 Cr.P.C., may
terminate, the order of the criminal court
would always be subject to decision by
the civil court. In as much as the parties
are already before the civil court, we
deem it proper to let the civil suit be
decided and therein appropriate interim
order be passed taking care of the
grievances of the parties by making
such arrangement as may remain in
operation during the hearing of the civil
suit."
9.In the present case, both the parties have already approached the
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Civil Court and they could not obtain any interim order, but, the third
respondent utilizing the power of the police initiated proceedings under
Section 145 Cr.P.C. As per the law lay down by the Hon’ble Supreme
Court, once the matter is pending between the parties before the Civil
Court, parallel proceedings cannot be conducted by the Executive
Magistrate. Therefore, in this case, the third respondent instead of
convincing the Civil Court and secure interim order, utilized the power
of the police and got the impugned order from the Revenue Divisional
Officer. The Hon’ble Supreme Court as well as this Court time and again
reiterated the view that when the civil dispute is pending regarding title
or possession before the Civil Court, the Executive Magistrate cannot
interfere with the same. Even as per the decision of the Full Bench of this
Court, parallel proceedings cannot be conducted with the Executive
Magistrate, when the matter is pending before the Civil Court.
10. In the light of the above facts, this Court finds that the first
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respondent without applying his mind and also exceeded his power
passed the order and hence, the proceeding in Na.Ka.No.2632/2020/A2,
dated 31.08.2020 is liable to be set aside and accordingly the same is set
aside. In fine, the Criminal Revision Case is allowed. Consequently,
connected miscellaneous petition is closed.
29.01.2021
Index : Yes / No
Internet : Yes / No
ms
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To
1.The Revenue Divisional Officer,
Salem District,
District Collector Buildings,
Salem.
2.The Tahsildar,
Salem Taluk,
Salem District.
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and Crl.MP.No.5941 of 2020
P.VELMURUGAN, J.
ms
Crl.R.C.No.845 of 2020
and
Crl.MP.No.5941 of 2020
29.01.2021
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