ORDER
A. Hanumanthu, J.
1. This petition has been filed under Section 482 Cr.P.C. to call for the records relating to the proceedings in RC.No.E/2359/96 dated 28-6-1996 initiated under Section 145 Cr.P.C. by the first respondent i.e. Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Paloncha, Khammam District and to quash the same.
2. The impugned proceedings relate to the possession of the lands in survey numbers 454/23/72/1, 454/23/72/3, 454/23/73/1, 454/ 23/73/3 total extent nearly Acs.30.00 situate at Gandugulapalli, hamlet of Nagupalli of Dammapeta Mandal, Khammam District, which is in tribal area. Under the impugned proceedings said to have been passed under sub-sections (1), (4), and (6) of Section 145 Cr.PC, the first respondent declared that 30 tribals mentioned in that order are in possession of the said lands and entitled to retain such possession until ousted by due course of law and forbid any disturbance of their possession in the meantime by the petitioner Madan Mohan Reddy. Challenging the said order of the first respondent, the petitioner has filed this application.
3. Sri S. Lakshma Reddy, learned Counsel for the petitioner made the following submissions:
(i) The first respondent passed the impugned order without issuing notice and passing preliminary order under sub-section (1) of Section 145 Cr.PC and as such the same is liable to be quashed.
(ii) Even before passing of the impugned order, the dispute relating to possession of the lands was seized by the Civil Courts and as such the first respondent has no jurisdiction to initiate proceedings under Section 145 Cr.PC.
The learned Counsel further elaborates that the disputed lands have been in possession and enjoyment of the petitioner and his family since 1966 as the same were purchased by the father of the petitioner late B. Lakshma Reddy under a registered agreement of sale from the original pattadar K.A.Dinakar and their possession has been upheld by the special Deputy Collector by his order dated 20-3-1994 in L.T.R.Case No. 883/85/DPT and 170/89/DPT.
He further contends that when non-tribals in the locality tried to interfere with the peaceful possession and enjoyment of the said lands, the petitioner’s mother representing the family filed O.S.No.29/95 on the file of Subordinate Judge’s Court, Sattupalli for perpetual injunction and she also filed I.A.No..267/95 for granting temporary injunction and the name has been granted and the suit is pending.
The learned Counsel further submits that at the instigation of non-tribals when some of the tribals tried to forcibly occupy these lands, the petitioner’s mother also filed O.S.No.9/96 on the file of special Assistant Agent, Mobile Court, Bhadrachalam having territorial jurisdiction over the said area and obtained ad interim injunction as per orders dated 31-01-1996 in I.A.No.16/96 and the same is subsisting and some of the tribals mentioned in the impugned order are some of the defendants in the said suit O.S.No.9/96. Thus, he submits that when the Civil Court has seized the subject-matter of the dispute between the same parties, the executive Magistrate has no power to initiate proceedings under Section 145 Cr.P.C.
(iii)The first respondent straightaway passed the final exparte order declaring that the tribals are entitled to the possession of the land until evicted therefrom in due course of law, without issuing notice to the petitioner and his family members and without calling for the written statements and evidence to
be adduced with respect to their claim for the disputed land.
4. On the other hand, the learned Additional Public Prosecutor submits that as seen from the record no notice was issued to the parties and no preliminary order under sub-section (1), of Section 145 Cr.P.C. has been passed before the impugned order was passed and, requests that this Court may direct the first respondent to comply with the mandatory provisions under Section 145(1) Cr.PC and pass the final order once again.
5. For proper appreciation of the contentions raised by the learned Counsel for the petitioner, it is necessary to quote Section 145 Cr.PC and the same reads as follows:
“145. Procedure where dispute concerning land or water is likely to cause breach of peace :–(1) Whenever an Executive Magistrate is satisfied from a report of a Police Officer or upon other information that a dispute likely to cause a breach of the peach exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of factual possession of the subject of dispute.
(2) For the purposes of this Section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Code for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be
published by being affixed to some conspicuous place at or near the subject of dispute
(4) The Magistrate shall, then without
reference to the merits or the claims of
any of the parties to a right to possess
the subject dispute, peruse the
statements so put in, hear the parties,
receive all such evidence as may be
produced by them, take such further
evidence, if any, as he thinks necessary,
and, if possible, decide whether any and
which of the parties was, at the date of
the order made by him under sub
section (1), in possession of the subject
of dispute:
Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a Police Officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6)(a)lf the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until
such eviction, and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceedings and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this Section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this Section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or tiling.
(10) Nothing in this Section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107.”
6. The object of Section 145 Cr.P.C. is to bring to an end by a summary process, disputes relating to immovable property which are essentially of a civil nature with a view to prevent breach of peace. It provides, as a speedy remedy, by bringing the parties before
the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent Civil Court. Enquiry under this Section is limited to the question as to who was in actual possession on the date of preliminary order irrespective of the rights of the parties and not to determine the rights and title of the parties.
7. For initiating proceedings under Section 145 Cr.P.C. two essential conditions must exist, firstly that the Magistrate is to satisfy himself that the dispute in relation to immovable property or water exists within his jurisdiction and secondly such a dispute is likely to cause breach of peace. Once these two conditions are satisfied, the Magistrate gets jurisdiction to pass the preliminary order in writing under sub-section (1) of Section 145 Cr.P.C stating the grounds of his being so satisfied and requiring the parties concerned to such dispute to attend his Court in person or by Pleader on a specified date and time and to put in written statements of their respective claims with respect to their factual possession of the subject of dispute. Under Clause 3, a copy of that order shall be served upon such person or persons concerned to the dispute and also at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. Under Clause 4 the Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them and take such further evidence, if any, as he thinks necessary and decide if possible whether any and which of the parties was on the date of the order made by him under sub-section (1), in possession of the subject of the dispute. Under sub-section (6), if the Magistrate decides that one of the parties was in such possession of such subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction. It is clear from these provisions that to initiate valid proceedings under this Section the procedure
laid down therein should be strictly followed. The impugned order reads as if the Magistrate had issued notice calling upon the parties to give written statements with regard to their respective claims as to the fact of actual possession of the disputed land and that an enquiry was conducted in that regard. But the learned Counsel for the petitioner vehemently contends that no preliminary order as contemplated under sub-clause (1) was issued calling upon the parties to give their written statements and that no enquiry was actually held and the recitals in the impugned order to the effect that notice was issued and enquiry was held, are false and that such an order has been passed with a mala fide intention to help the other party. The teamed Additional Public Prosecutor also submits that the file does not disclose that any such preliminary order was passed and notice was issued to the petitioner and other parties to the dispute. The learned Additional Public Prosecutor further submits that the record does not disclose whether a copy of that order was served upon the parties and affixed to some conspicuous place at or near the subject of disputed land. Further the other parties to the dispute numbering about 30 have also been added as respondents to this petition and inspite of notices being served on them, they have not chosen to contest this matter. Therefore, we have no hesitation to conclude that the Executive Magistrate, without following the procedure laid down under clauses 1 to 3 passed the impugned order under clause 6 of Section 145 Cr.P.C. Hence, the impugned order is liable to be quashed on that count alone.
8. The impugned proceedings are also liable to be quashed on the ground that they have been initiated by the Magistrate while the civil disputes with respect to the same lands between the parties are pending in the Court of Special Assistant Agent, Mobile Court, Bhadrachalam and also in the Court of Subordinate Judge, Sattupalli. The learned Counsel for the petitioner filed the certified copies’ of the orders in interlocutory applications granting interim injunction in favour of the
petitioner and his family members with respect to the disputed lands by two Civil Courts, as material papers. As seen from these documents, the learned Subordinate Judge, Sattupalli, ordered interim injunction on 20-7-1995 in I.A No.267/95 in O.S.No.29/95 in favour of the petitioner and his brothers and mother restraining Devarakonda Venkateswarulu and three others who are said to be non-tribals, restraining them from interfering with the possession and enjoyment of the disputed land. The Special Assistant Agent, Mobile Court, Bhadrachalam, by his order dated 31-01-1996 passed in I.A.No.16/96 in O.S.No.9/96, granted ad interim injunction in favour of the petitioner’s mother Lakshamma, restraining fourteen respondents who are said to be tribals from interfering with the peaceful possession and enjoyment of the disputed lands. It is stated by the learned Counsel for the petitioners that the said orders of injunction are still in force. Obviously, these two ad interim injunction orders, safe-guarding the possession of the petitioner and his family members have been passed long prior to the impugned orders passed by the first respondent on 28-06-1996 and the dispute relating to the possession of the disputed lands was pending in the Civil Court. It is well settled that the Executive Magistrate has no jurisdiction to initiate proceedings under Section 145 Cr.P.C when the Civil Courts are already seized of the matter in dispute. The question whether, when the matter involving possession is being examined by a Civil Court, the criminal proceedings under Section 134 can be initiated or continued has been authoritatively decided by the Supreme Court in Ramsuamath Puri Mahant v. State of U.P., AIR 1985 SC 472. In the said decision the facts are that a title suit, filed in a Civil Court, was decided against the plaintiffs and in favour of the defendants. The matter was taken up in appeal and the appeal was pending. When the matter was pending before the appellate Civil Court, some relatives of the plaintiffs initiated proceedings under Section 145 Cr.P.C. The High Court of Allahabad refused to set aside those proceedings initiated under Section 145 Cr.P.C.
The defendant in the Civil suit came in appeal to Supreme Court. The Supreme Court held:
“There is no scope to doubt or dispute the possession that the decree of the Civil Court is binding on the Criminal Court in a matter like one before us. Counsel for respondents 2 to 5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of decree of Civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by a 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 the pendency of the dispute. Multiplicity of litigation is not in the interest of parties nor should public time be allowed to be wasted over meaningless litigation”.
The order of the Magistrate initiating proceedings under Section 145 was quashed
by the Supreme Court.
9. This Court also has taken the same
view in G.Sudharshan Reddy and another v. Jeevan Latha Shrivastava and others, and in Revu Krishna Murthy and another vs. Tonamanda Venkateswara Rao and others, . Thus, parallel proceedings with regard to the same property i.e. before the Civil Court and before the Sub-Divisional Magistrate under Section 145 Cr.P.C would not be justified. This is more so, when in the civil proceedings which were initiated prior to the initiation of the proceedings under Section 145 Cr.P.C., interim injunction has been granted in favour of one of the parties to these proceedings by a Civil Court restraining the opposite party from disturbing the possession and enjoyment. In such a situation, a duty is cast on the Magistrate under Section 145 Cr.P.C. to see that the parties who have a civil dispute pending, do not take the law into their own hands and commit a breach of peace and he
may resort to initiate proceedings under Section 107 Cr.P.C.
10. In the light of the above discussion, we are of the opinion that the impugned order of the first respondent namely Sub-Divisional Magistrate-cum-Revenue Divisional Officer, Paloncha in Rc.No.E/2559/96 dated 28-6-1996 are liable to be quashed. Accordingly, the said proceedings are quashed and the petition is allowed.