JUDGMENT
Sivaraman Nair, J.
1. This is yet another reproduction of the strife-torn rural scene in India where different groups of landless poor persons thirsting for land, stake their claim and thereafter fight for possession of land. Neighbourhood rivalries of small dimensions manifest at the initial stages. Gaste and communal factors thereafter make their surreptitious en try and dominate the developments thereafter. Some effective intervention by the authorities would have diffused the crisis; but no such attempt was made. On the other hand the rivalries were allowed to develop into a major controversy which in no time, led to a violent explosion. Four villagers belonging to a neighbouring village fell victims, because the local officials were either apathetic or unduly optimistic. They did not foresee the fatal possibilities which would emerge when persons in possession and others eager to share the spoils decide to fight it out. This lack of foresight prevented them from effectively intervening to avert the tragedy. After-acquired wisdom prompted the Mandal Revenue Officer/Magistrate later to pass the impugned order adopting the not-unusual device of dispossessing the rival factions of land which the petitioners had been in possession for over four decades and the rival group of villagers seeking to assert their claim. This will not shock any one in India today, because it happens as a routine exercise day after day.
2. 382 Harijans who are residents of Isukapalli village are the petitioners. They claim that over Ac. 100.00 out of Ac. 180.40 cents of land in survey No. 112 was occupied by them for over forty years. That land formed the tank-bed of an irrigation tank ‘Badava Cheruvu’. The village was part of Pithapuram Jamin Estate. The adjoining villages are Nagulapalli Upparagudem and Gollaprolu. The tank used to irrigate some of the lands in Nagulapally through Buthapalli tumu. Some time after construction of the tank, the Zamindar found that adequate water could not be stored therein for irrigation in Badavacheruvu. Therefore, he commissioned formation of an alternative irrigation canal known as ‘Yelerusakha Gorrikandi’ and by providing regulators in the canal at the beginning of Nagulapalli village, water used to be supplied to the lands of that village. Badava Cheruvu was therefore abandoned as an irrigation tank. During the rainy season, rain water was collected in some portions of the tank, but a large area of the tank-bed remained dry. The Zamindar used to permit residents of Gollaprolu and Isukapally villages to the western and Southern sides of the tank to raise commercial crops after the rains in the tank-bed. On the division of the estate, those villages were allotted to Gollaprolu Zamin B-Estate. The revenue records, however, continued to show the entire survey number as tank poramboke, though most of it was actually under cultivation continuously over the years. At the time of abolition of the estate, the forefathers f the petitioners approached the 1st respondent for assignment to them of the lands in their possession. That request was rejected in proceedings L.Dis No. 25615 dt. 26-1-1951. They and thereafter the petitioners continued in possession of the lands. Occasionally, the revenue department used to require them to pay penal assessments and they were paying such amounts. Petitioners assert that they continued in occupation of the lands with occasional requests for assignment. Once again the request was turned down on 13-8-1969. An attempt was made soon thereafter to assign the lands in favour of ex-service personnel. Petitioners submitted representations dt. 6-11-1969 in reply to the notices of the 1st respondent that they had been in possession of the lands since 1369 Fasli, and since the land was assignable, they were entitled to preference. The 1st respondent verified these claims with reference to the cist receipts and attachment notice issued by the 3rd respondent and cancelled the assignment in favour of ex-service personnel, with the result that petitioners continued in uninterrupted possession. On 30-1-1970, petitioners made individual representations seeking assignment in their favour in accordance with G.O.Ms.No. 993 Rev. (B) Department, dt. 13-10-1969 in view of their long possession for over 20 years on payment of penal assessment, But the Tahsildar, Pithapuram informed the petitioners in Memo. L.Dis.No. M. 988/70, dt. 15-2-1970 that the representations could not be considered as the land was not available for assignment. However, an extent of Ac. 3.00 on the western side of the tank was assigned to one Nadimpalli Varahalaraju of Isukapalli village. Some of the petitioners made representations to the 1st respondent on 4-10-1976 claiming assignment in view of the fact that part of the tank-bed had already been assigned to a political sufferer. Petitioners stated that respondents used to order notices under Section 7 of the A.P. Land Encroachment Act now and then, but the possession of the petitioners remained undisturbed. Petitioners once again submitted their representations on 6-9-1989. Those individual representations did not however, evoke any response.
3. According to the petitioners, the tables were turned on them after one Sri Anesetty Bullabbaiah Reddy was elected as M.L. A. in the elections held in November, 1989. The assertion is that a scheme to dispossess the harijans of Isukapally of their lands and to assign those lands to persons belonging to another community in the neighbouring village was planned after his election as M.L.A. Alerted by the efforts of the more affluent and politically influential people of Nagulapally village seeking to dispossess them, petitioners approached the respondents as well as the Superintendent of Police, seeking protection of their rights to possession of the lands in question. These efforts proved futile. Petitioners had, in the mean-time, raised paddy and fodder crops in the tank-bed. The rival group is also alleged to have raised fodder crops in a portion of that land from October, 1989. Tension was mounting in the villages in an anxiety of the petitioners to protect their possession and the crops which they had raised, and of their rivals in an eagerness to assert their claims to have atleast a share of the land. Petitioners were driven to the dire need of protecting their possession by use of force in the absence of any effective intervention by the Revenue or police authorities. The worst happened on 18-1-1990 at about 7.00A.M. When about 200 persons armed with deadly weapons raided Isukapally village. The villages decided to fight back. Efforts for mediation made at the very last moment by the Head Constable of Police of Nagulapally outpost proved futile. The 95th petitioner therefore rushed to the Circle Inspector, Pithapuram about 4 K.Ms. from the village, requesting him to rash police force immediately to avert a violent and fatal clash between the two groups. It is stated that the Circle Inspector told him that there was a police party already in the village and that would handle the situation. By the time he returned to the village, violent clash had taken place resulting in fatal injuries to four persons belonging to Nagulapally village. As often happens, many villagers left their abodes fearing harassment and repression by the police. The Head Constable filed an F.I.R. which was registered as Crime No. 6/90 of Pithapuram Police Station. 125 villagers of Isukapally surrendered to the police and they were lodged in the central Jail, Rajahmundry, on 29-1-1990, as per the orders of the judicial First Class Magistrate, Pithapuram. They were released on bail three months thereafter. In the meantime, the Mandal Revenue Officer, 3rd respondent herein, passed an order allegedly under Section 145 of the Code of Criminal Procedure on 6-2-1990 impleading 20 named and 180 other residents of Patha Isukapalli, Upparagudem and Gollaprolu as ‘A’ party and 20 named persons and 18O others of Reddy and other communities of Nagulapalli village as ‘B’ party.
4. That order which is available in the files produced by the 3rd respondent reads as follows:
“In the circumstances reported by the Inspector of police, Pithapuram, that the respondents (A&B Parties) are frequently indulging in unlawful activities concerning dispute over ‘Badava Tank’ situated in the Isukapalli village and trying to commit breach of peace and public tranquility. I do decide and declare the respondents are not entitled to the ownership of the land as it is a tank poramboke belonging to Government and do strictly forbid them to enter upon the land. The standing fodder crop on the land is confiscated to the Government”.
Copies of that order were marked to (1) Mandal Revenue Inspector, Kothapalli and village Assistant, Nagulapalli, to take possession of the crop if any and dispose of it in open auction; (2) the Station House Officer, Pithapuram (3) the Sub-Divisional Magistrate and Revenue Divisional Officer, Kakinada (4) the District Magistrate and Collector, East Godavari, Kakinada. However, there is no indication in the order that copies were to be served on the contending parties. Notice of auction was issued on 16-2-1990. Petitioners assert that notices of auction were not served on them nor were published in their village. Standing fodder crop allegedly raised by the petitioners was auctioned pursuant to the order of the Mandal Revenue Officer, for an amount of Rs. 41,000/- on 24-2-1990. In the mean time, petitioners had sought permission of the Mandal Revenue Officer, to harvest and remove heaps of paddy crop which was ripe for harvest in the same land. The village officer reported on 23-2-1990, that the petitioners had raised the crop and they might be permitted to remove the same. On the same day, the Mandal Revenue Officer passed an order, permitting the petitioners to take away the paddy heaps from the land.
5. In the meantime, the Mandal Revenue Officer is alleged to have sent the order dt. 6-2-1990 for service on the parties on 21-2-1990. Petitioners assert that neither the order dt. 6-2-1990 nor the auction notice dt. 16-2-1990 were served on any one of them, since most of them were in judicial custody till April, 1990. Petitioners were, however, kept at bay and out of possession of the lands which they were admittedly cultivating for a long period past.
6. Three months after the fatal clash between the parties, the accused who were charge-sheeted in crime No. 6/90 were released on bail in April, 1990. Notices, were issued to the petitioners under Section 7 of the AP. Land Encroachment Act, proposing to dispossess them of the lands in Badava Cheruvu. This was a pointless exercise, since the Mandal Revenue Officer had already decided and declared that the petitioners were not entitled to ownership of the land and had strictly forbidden them from entering the land. It appears that the respondents wanted to add assurance to their assertion that petitioners would not enter the land. Petitioners filed this Writ Petition on 30-7-1990 to set aside the order of the Mandal Revenue Officer dt. 16-2-1990.
7. Petitioners assail the legality of that order on various grounds. They submit that the clash was engineered by interested parties to dispossess the petitioners after over forty years of peaceful possession of the lands in Badava Cheruvu. They also alleged that the order dispossessing them and confiscating produce of their labour cannot be justified in terms of Section 145 of the Code of Criminal Procedure, which was meant to be used only in emergencies when breach of peace was imminent, consequent on dispute relating to possession of land. They submit that there is an obligation to conduct a preliminary enquiry with notice to the disputants; and after terminating proceedings under Section 145 of the Criminal Procedure Code, the Magistrate has a duty to restore possession to the persons from whom such possession was taken or who was in possession prior to the initiation of the proceedings. They assert that the question of title was not a matter relevant for inquiry under Section 145 of the Code; and the Magistrate misdirected himself in finding that the petitioners had no ownership of the land. The order in so far as if did not comply with any of the statutory requirements is said to be a camouflage to dispossess the petitioners, so that the land can be assigned later to others. Petitioners also submit that the Mandal Revenue Officer/Magistrate could not have disturbed their possession after 40 years on an assumption that he had such power. They submit that they are entitled to continue in possession unless they are dispossessed in due compliance with law. Even though the specific prayer of the petitioners was directed against the auction notice dt. 16-2-1990, it is dear from the grounds and the interim relief that what they assailed was the order dated 16th February 1990 issued by the Mandal Revenue Officer, allegedly under Section 145 of the Code of Criminal Procedure. Since notices had been issued to them under Section 7 of the AP. Land Encroachment Act, they filed W.P.M.P. 14163 of 90 seeking interim direction to re-delivery of possession to them. After notices to the respondents, this court passed an interim order on 21-8-1990 that the respondents should not disturb the possession of the petitioners.
8. Counsel submits that the proceedings impugned in this Writ Petition do not satisfy the requirements of a legally enforceable order. He submits that the question whether the disputed land was available for assignment was not relevant to the exercise of the preventive and protective jurisdiction under Section 145 of the Code.
9. He also submits that there was absolutely no jurisdiction for deciding and declaring that the petitioners had no ownership of the land apparently in aid of a further order to forbid them from entering upon the land, which was admittedly in their possession till the clash took place on 18-1-1990. He asserts that there was no law nor justice in directing dispossession of the petitioners or confiscation of their crop and sale of the same in public auction, while the petitioners were in judicial custody. He asserts that confiscation was not preceded by any notice duly served on the petitioners. He also asserts that there was no due notice for the auction alleged to have been conducted on 24-2-1990.
10. Respondents have filed a counter affidavit justifying the order of the Mandal Revenue Officer dt. 6-2-1990 and the notice of auction dt. 16-2-1990. Reference is made to the attempt of Reddy’s belonging to Nagulapally villages, who began to dispute the possession of the petitioners and which led to a violent clash between the two groups of persons on the tank-bund in Isukapally village on 18-1-1990. The counter-affidavit proceeds on the basis that the petitioners were in possession for a long time and villagers of Nagulapally raised a dispute in October, 1989 for possession of a portion of the land; but the land in question was Government Poramboke, which was not assignable. Respondent asserts that petitioners cannot have any right in respect of government lands and that they cannot maintain an action for continuance in possession of lands which they had encroached upon. It is also asserted that due notices were served on the petitioners before passing the order dt. 6-2-1990 and the auction held on 24-2-1990. He seeks to justify the proceedings as one of dire need to prevent further violent clashes in the locality, if either party was allowed to be in possession. According to him, fodder crop was raised by both parties and therefore confiscation of crops raised in government land was fully justified. He asserts that the petitioners who are admittedly trespassers, cannot have any enforceable right which alone can be the subject-matter of writ proceedings.
11. Government Pleader submits that ordinarily the petitioners would not have been entitled because of Section 6 of the Specific Relief Act, to sue the Government for possession if they were dispossessed from government lands into which they had trespassed. He submits that if a suit was not maintainable, a Writ Petition seeking that remedy is few less entertainable. He submits that petitioners have not sought any relief against the order dt. 6-2-1990 or for restoration of possession. He submits that against the notices issued under Section 7 of the Land Encroachment Act and orders to be passed pursuant thereto, petitioners are entitled to file appeals or revisions before the competent statutory authorities. He submits that no relief against those proceedings are also sought in the Writ Petition and no direction can therefore be granted. His further submission is that petitioners are not entitled to challenge the order issued under Section 145 of the Code of Criminal Procedure in a Writ Petition filed under Article 226 of the Constitution of India. He submits that even assuming that the order is not sustainable, interests of justice do not require any order in favour of the petitioners who had admittedly trespassed into the Government lands. Yet another submission is that in the prevailing circumstances, where a violent clash had taken place relating to possession of the tank-bed in Badava Cheruvu, the Mandal Revenue Officer could not have passed any better order other than the one dt. 6-2-1990 restraining the contending parties from entering into possession of the land even for the purpose of harvesting the fodder crops raised by them.
12. On 23-1-1991, the petitioners filed W.P.MP.Nos. 2950 and 2951 of 1991 the former to implead the Superintendent of Police, Kakinada and the Circle Inspector of Police, Pithapuram as respondents 4 and 5 and the latter to direct those respondents not to cause any obstruction to the petitioners from cultivating the tank-bed in S.No. 112 of Isukapally village. The affidavit accompanying the former petition shows that the direction in W.P.M.P. 2951/91 was sought in view of the interim order in W.P.M.P. 14163/90 not to disturb the possession of the petitioners and the categoric admission in the counter affidavit of the 3rd respondent that the petitioners were in possession of the tank-bed for a long period of time. Petitioners reiterated their assertion that even at that time time respondents had not served the order dt. 6-2-1990 issued under Section 145 of the Code of Criminal Procedure, on them.
13. When the matter came up before my learned brother Parvatha Rao, J. on 11-7-1991, the Government Pleader produced the records leading to the order dt. 16-2-90. That file disclosed that it was only consequential upon the order under Section 145 CrP.C. dt. 6-2-1990. He therefore directed the Government Pleader to produce the file relating to the proceedings under Section 145 Cr.P.C. and petitioners to produce notices under Section 7 of the Land Encroachment Act. The Government Pleader has produced all the relevant records now. It is from those files that I have extracted the order dated 6-2-1990, consequent to which, the impugned notices dt. 16-2-1990 were issued.
14. On these facts, I shall immediately deal with the preliminary objections raised by the Government Pleader, namely (1) that there is no specific prayer to quash the order dt. 6-2-1990 and (2) that even assuming that there is such a prayer, this court will not interfere with that order in proceedings under Article 226 of the Constitution of India.
15. I am not impressed by either of these submissions. The petitioners had been asserting that no notice was given to them either before passing the order dated 6-2-1990 or thereafter. I am inclined to agree with the petitioners after perusing the file. I have referred to the fact that the order did not contain any indication that it was meant to be served on the petitioners. Para 11 of the affidavit accompanying the petition contains a specific assertion that the respondents did not serve any order including the auction notice on the petitioners. The counter affidavit did not controvert this assertion except regarding the auction notice. In the affidavit accompanying W.P.M.P. 2950 of 91 the petitioners asserted that – “but till date we did not receive any notice, nor Section 145 Cr.P.C. proceedings initiated in a manner known to law by respondents”. Respondents have not chosen to controvert that assertion even though notice was ordered on that petition on 15-4-1991. It was thereafter that on 11-7-1991, Parvatha Rao, J. perused the file produced by the Government Pleader and found the order dated 6-2-1990 which the 3rd respondent had passed under Section 145 of the Code of Criminal Procedure. The record therefore bears out the assertion of the petitioners. If that be the position, I cannot accept the submission that the petitioners are not entitled to any relief against the order dated 6th February, 1990 for the reason that they have not claimed any specific relief in that regard. That was obviously for the reason that they could not have sought that relief, as the order was not served on them.
16. I am not impressed by the other objection that the petitioners are not entitled to any relief in these proceedings against the order made under Section 145 Cr.P.C. The order/notice dt. 16-2-1990 did not refer to the Code of Criminal Procedure. Petitioners filed the Writ Petition asserting that, that order was devoid of jurisdiction, arbitrary and violative of the principles of natural justice. They had, of course, stated that they should not have been dispossessed in exercise of the powers under Section 145 of the Code, and, in any case, without notice or conducting a preliminary enquiry. It is but natural that they seek recourse to these proceedings against confiscation and resultant auction of the crops allegedly raised by them. The remedy of revision under Section 397 Cr.P.C. being confined only to final orders, the petitioners could not have sought relief from the revisional court without seeing the order under Section 145 Cr.P.C. The only remedy available to them under the Code would have been to invoke the inherent powers of this court under Section 482 of the Code. The petitioners had not specified Article 226 of the Constitution of India as the specific power which they invoked, though they had sought issue of an “appropriate writ, order or direction, more particularly in the nature of writ of mandamus”. It is true that pleadings must be specific and the jurisdiction which is invoked must be specified with particularity. It is equally true that a citizen who approaches the court for relief shall not be turned out on the basis of technicalities, if the court has jurisdiction and if the cause cries for justice. This must be more so, since the jurisdiction under Article 226 of the Constitution is as; much equitable as it is discretionary. For these reasons I am not inclined to refuse relief to the petitioners on either of the two preliminary objections raised by the respondents.
17. To understand the rival contentions on merits, it is necessary to refer (first to Section 145 of the Code of Criminal Procedure, under which order dt. 6-2-1990 which is the genesis of the notice/order dt. 16-2-1990 was alleged to have been passed. That section occurs in Chapter 10 of the Code dealing with “Maintenance of Public Order and Tranquility& “. Disputes as to immoveable property are covered by Section is 145 to 148. Section 145 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 peace exists concerning and 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 actual 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 a 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 of 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) If 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 which 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 proceeding 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 thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate proceeded under Section 107.
Section 146 empowers the Magistrate to attach the property and to appoint a Receiver if necessary. Section 147 deals with dispute concerning right of use of land or water. Section 148 deals with local inquiry which may be necessary for the purpose of Sections 145, 146 or 147.
18. It is clear from Section 145, that the Magistrate shall satisfy himself that a dispute likely to cause breach of the peace exists in a locality within his jurisdiction with reasons therefor, before he requires the parties concerned to attend his court in person or by pleader and to put in any written statement of their respective claims. Thereafter, he shall persue the statements put in by the parties or hear them, receive such evidence as they produce or take such evidence as he thinks necessary and decide as to who was in possession of the subject of dispute. After entering such a finding, he has immediately to restore possession to the person who was forcibly and wrongfully dispossessed. He is also obliged to cancel his order if any authority or other person interested shows that there was no such dispute in respect of the land in question. His obligation is clear from Sub-section (6) that he should forbid all disturbances of possession of the person who was forcibly or wrongfully dispossessed till he is duly evicted. Under Sub-section (8), the Magistrate has power, when he is of the opinion that any crop or other produce of the property may be subjected to speedy and natural decay, to make an order for proper custody or sale of such crop. There is however, no provision which authorises him to confiscate the crop and thereafter sell it in public auction.
19. In the light of the provisions of the Code, his difficult to sustain the order dt. 6-2-1990 as one passed under Section 145 of the Code. The order does not contain a record of the satisfaction of the Mandal Revenue Officer of the requirements of Sub-section (1), nor is it indicated that he at least adverted to the statutory requirements which conditioned the exercise of power thereunder. The order does not show that the Magistrate was aware that he ought to have required the parties concerned in the dispute to attend his court and file written statements of the respective claims and that claims which he could investigate were only in respect of possession – nothing more or less. There is no evidence that the copy of the order was served on the petitioners as required by Sub-section (3) of the Code. The respondent has no case that the Magistrate did conduct an inquiry as provided in Sub-section (4) of the Code. One point which was not in dispute before the Mandal Revenue Officer was that the petitioners were in possession of a substantial portion of the land since a long time and had actually raised paddy and fodder crops in the land. The entire purport of Section 145 is to protect the possession of such persons from persons seeding forcibly and wrongfully to dispossess them, or trying to create breach of the peace on the basis of a pretended dispute of possession. Unfortunately, the Magistrate decided perversely and arbitrarily to use that very protective and preventive jurisdiction, to strike the petitioners with, dispossess them by show of force and prevent them forcibly from entering or remaining on the land.
20. It is clear that what Section 145 Cr.P.C. enables the Magistrate to do is to use emergency powers more as a shield to protect persons who are actually in possession by making a preliminary order, requiring the contending parties to attend an inquiry, file their statements, produce their evidence and adduce their arguments. This provision which was clearly and indisputably meant to protect possession of persons who were in possession of land immediately prior to such proceedings, could not have been used convertly to dispossess such persons by use of force on the pretext of a dispute relating to possession. It is true that the dispute between parties had turned into a violent conflagration and resulted in fatal injuries to four persons belonging to the rival-group. The circumstances under which the violent clash and the consequent loss of four precious human lives took place are subject of proceedings before a competent criminal court., it is not for me to consider matters involved in any such proceedings in this petition under Article 226 of the Constitution of India. I am concerned only with the correctness of the order dt. 6-2-1990 and the resultant proceedings confiscating and selling produce, which are impugned in these proceedings.
21. It is difficult to sustain that order as one made under Section ,145 Cr.P.C. It appears to me that the Mandal Revenue Officer could exercise the powers under Section 145 of the Code only for the purpose of preventing breach of the peace resulting from a dispute relating to possession of land. His anxiety seems to have been to keep the petitioners who were undeniably in possession of most of the land for a long period of time out of such possession and deprive them of the opportunity to harvest the crop which presumably they had raised. The Code has not conferred any such power in any Magistrate to dispossess a person in possession whatever be the sustainability or otherwise of his claim for ownership or title except to the limited extent of appointment of a receiver till the question of possession is decided. No provision in the Code authorises a Magistrate in a proceeding under Section 145 to confiscate the crop raised by the party in possession without conducting an inquiry and unless the parties concerned are notified in advance by serving a provisional order on them. No serious attempt was made either in the order or in the counter affidavit or in the submissions before me to rely on any specific provision of the Code, much less of Section 145 Cr.P.C. to sustain the order. The consequence of non-compliance with the requirements of the section is fatal to the legality of the entire proceedings. I need in this connection refer only to one decision of the Supreme Court. In Mathuraalal v. Bhanwarlal, it was ‘ observed:
“A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings, it is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146. In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be ‘at any time after making the order under Sub-section (1) of Section 145. While the other two situations have necessarily to be at the final stage of the proceeding initiated by the preliminary order. Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements. Sub-section (3) of Section 145 prescribes the mode of service of the preliminary order on the parties. Sub-section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and if possible, to decide which of the parties was in possession on the date of the preliminary order. If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by Sub-section (6). Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession , is made in Section 146 under which he may attach the subject of dispute until the determination of the rights of parties by a competent court”.
22. The only submission of the respondent on this aspect was that the deficiency in complying with the procedural requirements of the Section can be made good by a post-decisional opportunity. The Government Pleader relied on the decisions in Smt. Maneka Gandhi v. Union of India, . Liberty Oil Mills and Ors. v. Union of India, . Union of India v. Tulsiram Patel, , R.S. Dass v. Union of India , AIR 1978 SC 593 Charanlal Sahu v. Union of India, in support of this proposition.
23. It may be that in cases where natural justice is to be read into exercise of any power, and depending entirely on the facts and circumstances of each case, a post-decisional opportunity may perhaps do duty for the requirement to hear the party before a decision is rendered. That principle cannot however apply to situations where exercise of power by a statutory authority is conditioned by a statutory obligation to give notice and hear persons who are likely to be affected. The illegality involved in defiance of a statutory obligation cannot be condoned by. the ritual of a post-decisional hearing. It is far more so in this case where the statute enjoins upon the Magistrate to pass any order in respect of possession of disputed land only after making and serving a preliminary order, and that too only to protect possession and prevent unlawful invasion of such possession. After dispossessing the petitioners in an illegal and arbitrary manner, offer of a post-decisional opportunity to them is hardly any solace. It is not good law or justice that is offered to them, because the law enjoins upon the authority to pass an order only after an inquiry with notice to the persons claiming to be in possession and justice demands that the power shall be exercised for the purpose of protecting such possession, so as to enable him to reap his harvest. Law does not authorise such a course. Justice cannot countenance the defiance which was committed in the name of law in an arbitrary manner in violation of statutory provisions. I have no doubt that the order dt. 6-2-1990 which the respondent Mandal Revenue Officer issued was not a legal order. He clutched at some provision in the Code of Criminal Procedure, not for the purpose of protecting the persons who were in possession, but only for the purpose of dispossessing them under the guise of preventing breach of peace. It is doubtful whether he had taken pains to instruct himself of the content of Section 145 of the code before he took the drastic step of dispossessing the petitioners. To countenance such action will be to put a premium on lawlessness of the law enforcers.
24. Apart from these legal aspects, there are some disturbing factual details which the files produced by the Government Pleader discloses. It is the case of the respondents that action under Section 145 of the Code of Criminal Procedure was initiated on the report of the Inspector of Police dated 1-2-1990 which was based on the F.I.R. in Crime No. 14/90 of Pithapuram Police Station (page 15 of the file). He specifically recommended proceedings under Section 145 Cr.P.C. against the rival factions and “to take possession of the land on which fodder crop was raised” (pages 17 to 23 of file ‘A’). The Mandal Revenue Officer passed orders on 6-2-1990. Copy of that order was sent to the Station House Officer, Pithapuram. Curiously however, the same file contains yet another F.I.R. dt. 14-2-1990 registered as crime No. 25/90 (vide page 75, ‘A’ file) by the same Inspector of Police on almost the same allegations and requesting the Mandal Executive Magistrate (MRO) ” to initiate proceedings under Section 145 Cr.P.C. against the respondents of both groups and to take possession of the said land to an extent of about Ac. 120.00 with the standing fodder crop therein (pages 77 to 83 of ‘A’ file). Why this second report for initiating action under Section 145 and to take possession of the land? Either the Inspector of Police was not aware of the order dt. 6-2-1990 or that order would have come into being only after the second report in crime No. 25/90 after 14-2-1990. The order would therefore have been ante-dated, is the suggestion by counsel for the petitioner. He submits that these records ‘were brought into being much later when the petitioners filed the Writ Petition challenging the auction notices dt 16-2-1990. I have noted the significant fact that the order did not contain any indication that it was to be served on the petitioners. Government Pleader brought to my notice, page 14 of the ‘A’ file containing thumb impressions of 20 persons. ‘He submitted that service was effected pursuant to instructions contained in the letter of the Mandal Revenue Officer dated 21-2-1990 (page 85 and 1 of the file ‘A’) and which the Station House Officer, Pithapuram acknowledged on 22-1-1990. Curiously, there is no dated endorsement nor any report of service by any person. There is substance in the submission of counsel for the petitioners that service could not have been effected on the petitioners who were in judicial custody or were avoiding arrest by the police. Apart from absence of date of service, absence of any identifying witness at the time of service also lends considerable support to the submission. Another circumstance which needs explanation is the absence of the date of the order of the Executive Magistrate in the auction notice (pages 15 to 17) of file ‘B’. Counsel also refers to the alleged service of auction notice on some of the petitioners at a time when they were actually in judicial custody. He also submit that if the orders under Section 145 of the Code were served on the petitioner soon after 22-2-1990 and they had been dispossessed thereby, what was the need for issue of notices under Section 7 of the Land Encroachment Act, on 30-4-1990, which were served on the petitioners only on 12-8-1990, after receipt of notice of the Writ Petition. These facts seem to me to justify the submission of the petitioners that the order dt. 6-2-1990 was either not made on that date or that it was not served on the petitioners so far. I do not propose to undertake a detailed inquiry into these aspects in this Writ Petition. Suffice it for me to say that the respondents acted in an altogether illegal and arbitrary manner.
25. I am not unaware of the fact that trouble had been simmering for some time past relating to possession of cultivable portions of Badava Cheruvu. Since nobody bothered to diffuse the crisis, it exploded into a violent clash resulting in the death of four persons belonging to one of the groups. That incident took place on 18-1-1990. Even that instance did not justify the order which the respondent passed. I could have understood that, if any attempt was made to ward off the violent clash between the two groups contending for possession. Neither the police nor the Magistrate took any effective step to prevent the incident. I do not find any justification for any order dispossessing the petitioners and confiscating the crops which had been raised in the land in their possession. It is important to note that the Revenue records indicated sufficiently well that the petitioners were in possession for a fairly long period of time. The village officer had certified that the petitioners had raised the paddy crop almost simultaneously with the fodder crop; and on the basis of that report, the same Magistrate had permitted them to reap and carry away the paddy harvest. No violent incident occurred at the time of harvest nor was the transport of paddy heaps interrupted by any threat of breach of the peace. It seems to me that there was no justification for the assumption that there would have been violent interruption resulting in breach of the peace, if the possession of the petitioners was protected by necessary preventive action and if they were allowed to harvest the fodder crop.
26. I am not persuaded to hold that the petitioners are not entitled to any relief from this court because they were admittedly trespassers into Government lands. It is exactly to deal with such persons that the State Legislature has enacted the Land Encroachment Act If a person was wrongfully in possession of Government land, he has to be dispossessed only in accordance with law which provides for such dispossession under that Act and not by passing an order under Section 145 of the CrP.C. The law should apply uniformly. In this case the right of the petitioners to continue in possession was invaded in an illegal manner resulting in manifest injustice. This court may be condoning illegality and injustice if it refuses to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India on the ground of any technicality.
27. The question whether a person in possession of Government land can complain against arbitrary dispossession of such land was considered by the Supreme Court in Bishan Das and Ors. v. State of Punjab, . On almost similar facts, the court held-
“We feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) by virtue of enactments binding on the Government the petitioners could be dispossessed, if at all, only in pursuance of a decree of a civil court obtained in proceedings properly initiated. In these circumstances, the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably expected from a government functioning in a society governed by a constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property.”
That decision was rendered by a bench of five Judges of the Supreme Court. Government Pleader relies on a subsequent decision of a co-ordinate bench in State of Orissa v. Rama Chandra Dev, wherein the Supreme Court upset the judgment of the Orissa High Court in AIR 1957 Orissa 80. The facts of the case are almost similar. The respondent before the Supreme Court was in possession of the lands in question for more than 80 years and he claimed that that possession afforded him a right to claim relief under Article 226 of the Constitution of India. The High Court accepted that submission that the right of a person to recover possession of land of which he was dispossessed was implicit in Section 9 of the Specific Relief Act and that right could be enforced by that person under Article 226 of the Constitution even against the Government Three out of six appeals filed before the Supreme Court from the Judgment of the Orissa High Court were disposed of by consent on the basis of a compromise between the parties. Of the remaining three appeals, one was disposed of on 10th October, 1962, again, on consent In the remaining two appeals, the court passed an order adjourning the appeals for four months without prejudice to the right of the respondents to sue the appellant in the court of a competent civil judge. A further request for time was turned down and those two appeals were also disposed of holding that the question of title could not have been decided in proceedings under Article 226 of the Constitution of India. The court however made an observation to the following effect:
“Mere possession of the property for however long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Article 226 where the grant has been resumed.”
Government Pleader relies on those observations and submits that in view of the decision in Union of India v. Raghubir Singh, the latter decision by a co-ordinate bench has to be prevailed. The argument is attractive. But there are more hurdles than one to accept it. The first reason is that in State of Orissa v. Rama Chandra Dev (8 supra) the Supreme Court had not referred to the decision in Bishan Das v. State of Punjab (7 supra), the earlier decision of a co-ordinate bench. The second reason is that in a latter decision in Express Newspapers Pvt. Ltd. v. Union of India, the Supreme Court with reference to the observation in State of Orissa v. Rama Chandra Dev (8 supra) found-
“It seems to me that the observations of Gajendragadkar, J. were merely in the nature of obiter in Ram Chandra Dev’s case and nothing really turns on the observations made by him. The decision in Ram Chandra Dev’s case appears to be in per incuriam.”
The court also observed that there was no reference to the earlier decision of the Constitution Bench in Bishan Das’case nor did the judgment lay down any contrary principle. If the decision in Ramachandra Dev’s (8 supra)case is per incuriam, we are bound by the earlier decision in Bishan Das (7 supra), in view of the observations contained in Express News Papers case (l0 supra). Yet another reason why I hold that a Writ Petition by persons in possession of Government land against arbitrary dispossession without notice is maintainable is that in Olga Tellis v. Bombay Municipal Corporation, ” the Supreme Court held that such a Writ Petition was maintainable. That is a latter decision by a bench of five judges of the Supreme Court Almost same question came up for consideration in State of U.P. v. Maharaja Dharmander Prasad Singh, . The Supreme Court after referring to an objection by the appellant that the respondent who was the Writ Petitioner before the Allahabad High Court was holding on to possession after expiry of the lease and he could not therefore have filed the Writ Petition under Article 226 of the Constitution, held:
“Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all “actions of government and governmental authorities should have a legal pedigree. Therefore possession can be resumed by government only in a manner known, to or recognised by law. Government is accordingly, prohibited from taking possession otherwise than in due course of law”.
In paragraph 30 of the judgment, the Supreme Court, referred to Bishan Das v. State of Punjab (7 supra) and extracted the following observations in that Judgment:
“We must, therefore, repel the argument based on the contention that the petitoners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order………………..”
It is, therefore, obvious that Bishan Das v. State of Punjab ( 7 supra) still holds the field and justifies invocation of extraordinary jurisdiction of this court in cases of wrongful dispossession by the executive even as trespassers.
28. Still another reason why the objections of the respondents shall be rejected is that the petitioners have a right to fair procedure which is free from arbitrariness as enjoined by Article 14 of the Constitution of India. The same principle was laid down in E.P. Royappa v. State of Tamilnadu, . Maneka Gandhi v. Union of India (2 supra) Ajay Hasia v. Khalid Mujib Sehravardi, . Nakara v. Union of India, AIR 1989 SC 136. Supreme Court Employees Welfare Association v. Union of India, . It is often said that the two requirements of fair and reasonable action by public authorities are that any action taken by the public authority with statutory powers has to be tested by the application of the twin standards that such action must be within the scope of the authority conferred and that it must be reasonable. It is also necessary to remember that –
‘from the point of view of the ordinary citizen it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work” Current Legal Probelms 1953. Vol. 6 by Romond Evershed.
29. I am, therefore of the opinion that in view of the decisions in Bishan Das. v. State of Punjab ( 7 supra ), and Olga Tellis v. Bombay Municipal Corporation (11 supra) and the explanation in State of Orissa v. Ramachandra Dev (8 surpra) Express News papers v. Union of India (10supra) it has to be held that the petitioners have the right to approach this court under Article 226 of the Constitution of India against the arbitrary dispossession from Government land as also against illegal confiscation of produce raised in such land.
30. Another objection raised by counsel for the respondents is that petitioners who are trespassers, have by their conduct dis-entitled themselves from any discretionary relief under Article 226 of the Constitution. The same contention was raised without success in Bishan Das (7 supra) case, as also in Olga Tellis (11 supra). In the latter case Chinnappa Reddy, J.. speaking for the bench at para 49 said:
“Trespass is a tort. But, even the Law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important,” that trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him
“Besides, under the Law of Torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself.
31. It is therefore not as if a person who is in possession of government land is liable to be evicted summarily and without notice; nor is it the law in our country that such a person is not entitled to complain, if he is. thrown out arbitrarily under colour of a statute which confers on the authority a preventive and protective jurisdiction to safeguard such possession.
32. Respondents are not justified in their submission that even if the proceedings under Section 145 of the Code of Criminal Procedure are unsustainable, it is neither necessary nor desirable to put the petitioners back into possession, since notices have already been issued under Section 7 of the Land Encroachment Act to evict them. May be, the resumption of petitioners may be short lived, but they are entitled to insist that an illegal order which was passed in an arbitrary and high handed manner shall stand vacated. I do not find any good reason to refuse this legitimate claim of the petitioners. It is not necessary for me in these proceedings now to decide as to whether petitioners, or the rival group of persons from Nagulapally village that are entitled to asignment of land or in what proportion. Those are matters which have to be decided in other proceedings by a competent authority. I should however, express my anguish that it is unfortunate that two groups of poor people both claiming to be landless should have been left to break their heads on the tank-bed, resulting in four casualities and dispossession of the petitioners of lands which they were cultivating for over four decades. On a persual of the counter affidavit filed by the respondents and the records produced, I am satisfied that there are atleast some portions of Badava Cheruvu tank-bed which may not be necessary for the purpose of irrigation and such lands may be usefully assigned to persons who have been in possession and have been cultivating the same.. Whether such available land shall be assigned exclusively to one of the neighbouring villagers is a question which the respondents have to decide after hearing both sides and in a just and quitable manner. Till such a decision is rendered, it is necessary that the possession of the respective parties are retained and sufficient safeguards are made to prevent violent explosions like the one which took place on 18-1-1990.
33 It was way back on 19th April, 1961 that a Constitution Bench of the Supreme Court observed in anguish and perhaps a sense of despair in Bishan Das. (7 supra)
“Before we part with this case, we feel it our duty to say that the executive action taken in the case by the State and its officers is destructive of the basic principle of the rule of law”.
‘The State and its officers’ do not seem to have cared, and our legal system 1 is nearer destruction as was visualised in that portentous pronouncement It is unfortunate that the caution of three decades’ vintage has to be repeated even now. This state of affairs makes it obligatory for the court to discharge its duty to hold the unruly horses of executive power in the leading strings of law and fair-play.
34. In the light of the above, I allow this Writ petition and set aside the order of the 3rd respondent dt. 6-2-1990, the consequent proceedings dt. 16-2-1990 and the auction conducted on 24-2-1990. I also direct that the proceeds of the sale which are said to be in revenue deposit shall be paid over to the persons who had raised the fodder crop, after conducting a detailed enquiry into that aspect of the matter. I cannot entrust that inquiry to the 2nd respondent – Mandal Executive Magistrate/Revenue Officer who as exposed his illiteracy and ignorance of the law which he has to administeras is revealed in the proceedings in question. In the hope that better wisdom rests with the officers higher up in the heirarchy, I direct that the 1st respondent – District Collector shall undertake these exercises. I deliberately refrain from entering any finding regarding the respective claims of the petitioners and the villagers of Nagulapally, since the latter are not parties in this Writ Petition and those questions have to be decided in proceedings which are to follow. I also hold that the proceedings under the Land Encroachment Act shall be kept in abeyance till such time as the 1st respondent takes a final decision as to whether any portion of Badava Cheruvu tank-bed in Survey No. 112 of Patha Isukapally village of Pithapuram taluk is assignable, if the same is not necessary for purposes of irrigation and a further decision is arrived at with notice to parties as to how much of the above land shall be distributed to the neighbouring villagers and in what proportion. The fact that the petitioners had admittedly been in possession of substantial portions of the land for over 40 years, as revealed by the records produced in this case, shall be taken into account, in arriving at any decision about the proportion of assignable land which they may be granted.
35. The Writ Petition is allowed as above, with costs including advocate’s fee of Rs. 500/-.