ORDER
S.R. Singharavelu, J.
1. Ameer Humza, the petitioner is said to be the tenant in the premises bearing door No. 8/1, V.O.C. Nagar II Street, Chennai-102, the owner of which is one Srinivasan, 1st respondent. As per order dated 11.03.2005 issued by the Tahsildar-cum-Executive Magistrate, Perambur, Purasaiwalkam Taluk, Chennai under section 145 of Criminal Procedure Code, both were forbidden from entering into the said premises; that order was based upon the report made by 2nd respondent-Inspector of Police, K-4 Police Station, Anna Nagar, Chennai, who has registered a case in Crime No. 695 of 2005 under section 145 of Criminal Procedure Code at the instance of 1st respondent Srinivasan.
2. Counsel for 1st respondent produced the copy of sale deed dated 02.11.1992 by Tamil Nadu Housing Board in favour of 1st respondent’s mother, who in turn, gifted the property on 14.12.1992 to the 1st respondent by virtue of a settlement deed. There were two complaints made by Srinivasan, 1st respondent to K-4 Police Station, one dated 06.03.2005 and another on 08.03.2005 contending that the petitioner is trying to encroach upon the property and preventing the 1st respondent from entering into the said property. It was further submitted that the petitioner was trying to put a hut upon the said property.
3. Per contra, counsel for the petitioner submitted that the 1st respondent filed a petition in RCOP No. 1768 of 1994 on the file of X Small Causes Court, Chennai under section 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of 1973 against this petitioner for eviction in respect of the said premises bearing door No. 8, V.O.C. Nagar, 2nd Street, Chennai-102 mentioning the tenancy portion 15′ x 10′ sq.ft.in the abovesaid premises. It was dismissed on 16.10.1997.
4. Counsel for the petitioner further pointed out that there was a decree obtained by this petitioner as plaintiff in O.S.2095 of 1994 on the file of VII Assistant Judge, City Civil Court, Madras and the decree was dated 16.08.1996, wherein permanent injunction was granted in the above said premises measuring 2073 sq.ft.
5. Thus, it is found that the contention of the 1st respondent as if petitioner is the trespasser as mentioned in his complaints dated 06.03.2005 and 08.03.2005 before K-4 Police Station is untrue. As per the decree dated 16.08.1996 in O.S.2095 of 1994 on the file of VII Assistant Judge, City Civil Court, Madras and as per the dismissal order dated 16.10.1997 in RCOP No. 1768 of 1994 on the file of X Small Causes Court, Chennai, this petitioner seems to be the tenant of the said building.
6. When such is the case, the Executive Magistrate cannot restrain both parties from entering into the subject matter of dispute by virtue of preliminary order. This is so because it was held as follows in Karthikeyan v. State 1990 MLJ Reports (Crl.)149.
“This infirmity of restraining both the parties from entering into the subject matter of the dispute is a serious infirmity sufficient to vitiate the preliminary order in the impugned proceedings”.
That judgment further provided with the following three fundamental requisites to maintain the order under section 145 Cr.P.C. They are,
(1) There must be a report of a police officer or other information that a dispute was likely to cause breach of peace concerning property mentioned in the petition;
(2) The Magistrate must be satisfied on such police report or other information that the dispute was likely to cause breach of peace; and
(3) On the satisfaction of the Magistrate, he must make an order in writing, stating the grounds for satisfaction, in the order, he intends making under Sec. 145(1) of the Criminal Procedure Code.”
7. The impugned order suffers for lack of subjective satisfaction inasmuch as the order does not reveal that the author of the order had gone into the pending civil proceedings between the parties. The above proposition was fortified in Ponnammal and Anr. v. State and Ors. 2004-2 L.W.(Crl.) 949, which provides as follows:
“Magistrate has stated that a breach of peace is likely to occur but he has not mentioned in his preliminary order his grounds of satisfaction in passing that order. Therefore, it is vitiated”.
8. It is not only the existence of dispute and breach of peace in respect of the property will make out a case for issuance of order under section 145 Cr.P.C. and regarding other requirements, there should be application of mind and as and when non application of mind is exposed, the order is to be quashed. This was fortified in the decision Selvaraj v. S.M. Officer, Nettapakkam Police Station, Nettapakkam and Anr. reported in (2001 L.W.(Crl.) 31, which provides as follows:-
“Existence of dispute or mere breach of peace in respect of a property are not the only circumstances to be taken into consideration for an order under S. 145 Cr.P.C. Other requirements necessary are satisfaction, application of mind, etc.”
9. Again in this case, Civil Court has seized the matter relating to the inter se dispute between the parties and usurpation of jurisdiction of Civil Court is unwarranted under the guise of passing an order under section 145 Cr.P.C. The above principal was laid down in Ponnan, etc v. Sakkarai @ Govindasamy, etc. 2001-1-L.W.(Crl.138), wherein it was held as follows:
“When already civil court is seized the matter is not proper on the part of the Executive Authority to usurp the jurisdiction of civil court and analyse documents and give finding as if the possession is with the respondent in the criminal revision petition – Order set aside”.
Again this proposition was based upon the following observation made in Ram Sumer Puri v. State of U.P. (AIR 1985 SC 472), which is as follows:
“When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, initiation of a parallel criminal proceedings under S. 145 of the Code, would not be justified”.
10. As per the above discussion, it is made clear that there is civil suit pending in between the parties regarding the question of possession by petitioner in respect of the same property and as already the application under section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, preferred by the 1st respondent was dismissed against claim of eviction, the petitioner is entitled to possession and while such is the case, preventing both parties from entering into the premises by virtue of an order under section 145 of Cr.P.C. is erroneous and accordingly, it is liable to be set aside.
11. For the reasons mentioned above, the criminal revision petition is allowed and the order passed by the Tahsildar-cum-Executive Magistrate, Perambur, Purasaiwalkam Taluk, Chennai dated 11.03.2005 is set aside. However, if dispute persists, initiation of proceedings under section 145 of Criminal Procedure Code upon other available proper grounds is not precluded. Consequently, connected Crl.M.P. is closed.