Madras High Court
S.Rajamanickam vs / on 10 September, 2024
Author: G.Jayachandran
Bench: G. Jayachandran
Crl.O.P.No.16948 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :06.09.2024
Pronounced on :10.09.2024
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Crl.O.P.No.16948 of 2024
1.S.Rajamanickam
2.R.Sathyamurthy
3.N.Saravanan
4.V.Rajagopal
5.R.Hari
6.Rajakumar .. Petitioners/Revision
Petitioners to 7/A Party
/versus/
1.A.M.Jayaraman
2.Mr.Pingalan
3.V.Ganesan .. Respondents 1 to 3/
Revision Petitioners 1 to 3/
B Party
4.The Executive Magistrate-cum-
Revenue Divisional Officer,
Erode. .. Fourth Respondent/1st
Revision Petitioner/Executive
Magistrate
1/17
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Crl.O.P.No.16948 of 2024
Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to set aside the order in Crl.R.P.No.14/2023, dated 09.02.2024 on
the file of the Principal Sessions Judge, Erode, confirming the order of
the fourth respondent in his proceedings No.Na.Ka.4097/2019/A2, dated
07.03.2023 and restore the possession to the petitioners herein.
For Petitioners :Mr.S.Vijayakumar, Senior Counsel for
Mr.K.N.Pandian
For R1 to R3 :Mr.A.R.Karunakaran for
M/s T.Sureka
For R4 :Mr.S.Udayakumar
Govt.Advocate (Crl.Side)
-----------------
ORDER
The dispute between the petitioners and the respondents 1 to 3,
is in respect of administering the Temple and Madam situated in a
Government porambokku land at Erode. Name of the Temple is Krishnan
Koil and Shri Laskhmi Narasimha Swami Bajanai Madam.
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2. The petitioners as ‘A’ party and the respondents 1 to 3, as ‘B’
party were called for enquiry under Section 145 of Cr.P.C by the 4 th
respondent, the Executive Magistrate -cum- Revenue Divisional Officer,
Erode. The said enquiry, which commenced on 09/10/2019 culminated in
passing of order on 07/03/2023 by the 4th respondent. Wherein, the
police was directed to restore the possession of the Temple and Madam
to the petitioners (A Party). Accordingly, the possession of the Temple
and Madam was taken by the petitioners (A Party).
3. Aggrieved by the order of the 4th respondent, the
respondents 1 to 3 herein, (the members of the B party) preferred revision
petition before the Principal Sessions Judge, Erode in Crl.R.P.No:
14/2023. The Learned Sessions Judge, vide order dated 09/02/2024 set
aside the order of the Executive Magistrate dated 07/03/2023.
4. The Learned Sessions Judge, considering the facts of the
case disposed of the revision petition observing that, Section 145 Cr.P.C.
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mandates the Executive Magistrate to decide the likelihood of breach of
public peace and pass necessary orders for maintenance of public peace.
In the course of such decision, he shall decide and declare possession of
land or water in dispute, till decided by due course of law. Perpetual
dispossession and delivery of possession to another can be made only in
due course of law and not by an order of the Executive Magistrate. The
Executive Magistrate under Section 145 of CrPC is not empowered to
order perpetual eviction against the person in wrongful possession, or
with delivery of perpetual possession in favour of the person entitled to
be in possession.
5. Holding that, the Executive Magistrate, who has to deal with
the likelihood of disturbance of public peace and incidentally about the
possession but not the right and title, had failed to deal with the
likelihood of breach of peace, however ordered perpetual dispossession
of B party. That apart, ordered the District Registrar to cancel the trust
deed executed by the B party in the year 2006. Therefore, for exceeding
the power conferred under Section 145 of Cr.P.C., the order of the
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Executive Magistrate was set aside and the ordered to deliver the
possession back to B party (respondent 1 to 3 herein) stating that, the
members of B party are in possession of the disputed property since 2006
as per VAO report. The persons in possession for 17 years cannot be
dispossessed by exercising power under Section 145 of Cr.P.C.
6. The said order of the District Sessions Judge is impugned in
this Criminal Original Petition.
7. The specific case of the petitioner is that, the Temple and the
Bajanai Madam is more than 100 years old. Telugu speaking people of
Routh community in Erode are performing daily poojas. While so, in the
name and style of Erode District, All Naidugar’s Welfare Trust,
respondents 1 to 3 had registered a trust deed showing the Government
poramboke land as the address of its registered office and fraudulently
got the deed registered at SRO, Erode as Document No:1025/2006.
Based on the trust deed, they were letting out the temple premises for
rent and making money illegally. Further, they are also preventing the
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petitioners from performing poojas, denying their century old right.
8. Accordingly to the Learned Senior Counsel appearing for the
petitioners, the members of B party with intention to grab the property
maintained by the members of A party, had created a trust deed with
fraudulent intention and thereafter, encroached the property. Later, they
are disturbing the religious activities of the petitioners in the Temple and
Madam, which they were carrying on for more than 100 years. This
prompted the petitioners to give representation to the Executive
Magistrate on 26/08/2019. The Executive Magistrate after ascertaining
from the VAO and through the records placed by either side, had arrived
at the conclusion that the Temple and Madam in dispute is located in
Government Poramboke land. Any registration of the document in
respect of government promboke land is illegal. Based on the trust deed
alone, the members of B party claims right over the property. Whereas,
the A party able to produce documents that the Temple and Madam were
in their possession and management for nearly 100 years. Documents and
VAO’s report proves that till 21/08/2006, the property in dispute was in
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possession of A party. Therefore, the illegal dispossession by B party
been set right, by the order of the Executive Magistrate by putting the A
party back in possession. This order is well within the power of the
Executive Magistrate conferred under Section 145 of Cr.P.C.
9. Per contra, the Learned Counsel for the respondents 1 to 3,
referring Section 145 Cr.P.C and the judgments of the Hon'ble Supreme
Court and the High Court contented that, dispossession, if any, within 2
months alone can be ordered to be restored in exercise of power under
Section 145 of Cr.P.C. Admittedly, in this case, dispossession if any was
in the year 2006 and the complaint was given to the Executive Magistrate
in the year 2019. The Executive Magistrate has erroneously taken
21/08/2006, as the date to consider the last possession, instead of two
months prior to the complainant.
10. The 4th respondent in his counter has stated that, more than
100 years ago, Telugu speaking Routh Community had put up the
Krishnan Temple and Lakshmi Narashimaswamy Bajanai Madam and
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worshipping. The land is classified as ‘ Government Poramboke-
KrishnanKoil ‘. It is in No: 113, Cutchery Street, Erode. The respondents
1 to 3 rely opon the Trust deed by name, “ Erode District All Naidugar’s
Welfare Trust, registered as document No: 1025/2006 mentioning its
registered office as No: 96, Cutchery Street, Erode claiming right over
the Temple and Madam. The trust members are using the place of temple
and leasing it out for the purpose of marriage and other functions after
getting electricity connection and water connection in the trust name.
11. The respondents besides misusing the temple property for
commercial activities, also started preventing the petitioners from
conducting bajanai and other religious activities in the Madam. There
was likelihood of breach of peace, due to the dispute between these two
groups. Hence, the Executive Magistrate has taken up the dispute for
enquiry under Section 145 of Cr.P.C and on completion of enqiry,
directed the police to ensure the members of the B party, take all their
belongings from the disputed land and handover the possession to
members of the A party, who were in possession of the temple and
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conducting pooja and bajanai. The records as well as the reports of the
VAO and the statements of witnesses clearly prove that the petitioners
were in possession of the Temple and Madam. The illegal occupation of
the members of the B party, based on the Trust deed is illegal. The claim
of the B party that the land in S.Nos:90,91 and 92, upon which the
Temple and Madam situated is not Government Poramboke, but the
private land of the Trust, found to be incorrect during the enquiry
conducted by the Executive Magistrate. Therefore, the order of the
Executive Magistrate to give possession to the A party is well within the
power of the Executive Magistrate. The Executive Magistrate directed
the District Registrar to cancel the trust deed No:1025/2006, to safe
guard the Government Land and same cannot be termed as execeeding
the jurisdiction. While preserving peace and tranquillity of the public, the
Executive Magistrate is also empowered to preserve and protect
Government property. Further, in the counter of the 4th respondent, it is
stated that after the order of the Principal Sessions Judge dated
09/02/2024 in Crl.R.P.No.14/2023, the respondents 1 to 3 had forcible
broke open the temple and had taken possession.
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12. Heard the Learned Counsels representing the petitioners
and the respondents.
13. Under Section 145 of Cr.P.C., the Executive Magistrate
conferred with jurisdiction to pass order in the matters where dispute
concerning land or water is likely to cause breach of peace. The
apprehension of the Magistrate is the foundation of the jurisdiction. The
power of the Executive Magistrate to repossess the property and hand it
over to the person dispossessed is subject to the proviso to Sub-Section
(4) and Subsection (6) of Section 145 of Cr.P.C. That apart, the Executive
Magistrate while ordering the repossession, shall mandatorily subject his
order to the final decision of the court of law. He should be satisfied that
the dispossession occurred within two months from the date on which the
report received by the police or from any other source. Further, the
Executive Magistrate under section 145 Cr.P.C has no jurisdiction to
declare a registered deed as legal or illegal. He has no jurisdiction to
direct the District Registrar to cancel the Trust Deed. At the same time,
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even though the possession of documents may arise to presumption of
title, it is the duty of the Executive Magistrate to ascertain who is in
actual possession. Section 145(4) of Cr.P.C., entitles even a squatter in
possession to get protection. Time and again courts have repeatedly held
that, under section 145 Cr.P.C., the Executive Magistrate is not supposed
to decide the title, but only the possession on the date of the complaint or
in case of dispossession within two month before the complaint.
14. In this case, the complaint to Executive Magistrate, dated
26/08/2019 signed by the members of A party, alleges that, the first
respondent sought consent to put up a compound wall after demolishing
the old wall through his Trust. Same was permitted by the members of
their community (A Party). Later, the community members felt that the
work should not be carried out through others, therefore, the first
respondent and his trust was requested to stop the construction work.
Later, construction was put up using the contribution made by their
community members (telugu speaking Routh community), when, the
petitioner attempted to claim right in the property, they were prevented
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from interfere in the affairs of the temple and Madam. While so, a month
before the complaint, the first respondent through his men forcible
engaged in putting up construction without permission of A Party. The
complaint and counter- complaint to the Erode Town Police is under
investigaon, meanwhile, there is likelihood of breach of peace hence to
take action under section 145 of CrPC.
15. Thus, in this case it is evident that the dispossession or an
attempt to dispossess was a month before the complaint to the Executive
Magistrate and the oral evidence of the witnesses also fortified the case
of the A party, that the Telugu speaking Routh community are
continuously workshiping in the Temple and Madam for 100 years.
Therefore, the order of the Executive Magistrate directing the police to
take possession from B party and give it to the members of A party is in
compliance to the proviso to subsection (4) and subsection (6) of Section
145 Cr.P.C.
16. The Principal Sessions Court, Erode, in the Revision
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Petition failed to take note of the fact that the complainant as well as the
evidence of witnesses stated that the petitioners are maintaining the
Krishnan Kovil and Lakshminarashimha Bajanai Madam. One of the
Trustee of Erode District All Naidugars’ Welfare Trust Mr. Singam
T.R.Venugopal and the Treasurer of the said Trust Mr.
Singam.T.Ravikumar had specifically stated that the Trust has nothing to
do with the Shri Lakshmi Narasimha Swamy Bajanai Madam. While so,
the order of repossession is justifiable and well within the scope of
proviso to sub Section (4) of Section 145 of Cr.P.C, since the
dispossession had started a month before the complaint and completed,
violating the prohibitory order issued by the Executive Magistrate,
pending disposal of the enquiry. The learned Sessions Judge has failed to
take note of the sequence of event and the admission of the Trust
members and office bearers of the Trust who have without any
reservation has admitted the possession of the petitioners.
17. It is incorrect to say that the members of B party took
possession of the Temple and Madam in the year 2006 itself. The trust
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deed will not confer title or possession. The continuous worship by the
members of A party/the petitioners herein, never been take away. The
disturbance to their possession by an attempt to put up further
construction has lead to complaint and counter-complaint. Apprehension
of disturbance to public peace and tranquillity has forced the Executive
Magistrate to take up the enquiry in exercise of his power under Section
145 of Cr.P.C. He has ordered repossession to the petitioners based on
the records and in tune with the power under Section 145 (4) and (6),
however failed to restrict and qualify his order that the possession to A
party will be subject to the out come of any suit or decision under due
process of law. Therefore, while upholding the direction to restore the
possession to the A party/ the petitioners herein, the said possession shall
be subject to the decision in due course of law.
18. In so far as the direction of the Executive Magistrate to the
District Registrar to cancel the trust deed, it is purely beyond the powers
of the Executive Magistrate conferred under Section 145 of Cr.P.C. The
deed of trust is not a title document. It is about the wish of the Founder to
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administer the activities mentioned in the Deed. It is matter between the
Founder, Trustees and the beneficiaries under the trust. Even assuming
the registration of deed is contrary to law (though in this case not so), the
Executive Magistrate while enquiring a dispute under Section 145 of
Cr.P.C is not empowered to declare a duly registered document as invalid
or illegal and direct the District Registrar to cancel the Deed. To that
extend, the order of the learned Principal Sessions judge is upheld.
19. The order of the Principal Sessions Judge, Erode passed in
Cr.R.P.No. 14 of 2023 is set aside in respect of ordering repossession of
the property to the respondents 1 to 3 (B party ) from the petitioners (A
party). The order of the Executive Magistrate to hand over the possession
to the petitioners /A party is hereby confirmed.
20. The order of the Principal Sessions Judge, Erode setting
aside the order of the Executive Magistrate directing the District
Registrar, Erode to cancel the trust deed No: 1025 of 2006 is hereby
confirmed.
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21. In the result, the Criminal Original Petition is partly
allowed. The possession of the property to be restored back to the
petitioners herein. No order as to costs.
10.09.2024
Index:yes
Neutral citation:yes/no
ari
To:
1.The Principal Sessions Judge, Erode.
2.The Executive Magistrate-cum-Revenue Divisional Officer,
Erode.
3.The Public Prosecutor, High Court,Madras.
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DR.G.JAYACHANDRAN,J.
ari
delivery Order made in
10.09.2024
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