Allowed

P.R.Devadas v. Sub Divisional Magistrate

Kerala HC25 Aug 2017Crl.Rev.Pet/1757/2016

Case brief

AI extract

What is this about?

Single judge of the Kerala High Court allowed the petitioner's criminal revision petition against an order of the Sub Divisional Magistrate under Section 145 Cr.P.C. The court held that invoking Section 145 Cr.P.C. was illegal as the civil court had already settled the parties' rights. The magistrate's action in ousting the petitioner and granting possession to the opposing group was illegal and w

What did the court decide?

The impugned order is set aside. Possession of the premises is restored to the petitioner immediately.

P.R.Devadas Vs Sub Divisional Magistrate — Landlord and Tenant | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939

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Crl.Rev.Pet.No. 1757 of 2016 ()

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AGAINST THE ORDER/JUDGMENT IN OS 83/2008 of SUB COURT, CHENGANNUR DATED

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REVISION PETITIONER(S):

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P.R. DEVADAS, PRESIDENT, AKHILA KERALA VISHWA KARMA MAHA SABHA, REG. NO.38/19-4-1123, H.O. VANJIPPUZHA BENGLOW, MUNDANKAVU, CHENGANNUR.

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BY ADVS.SRI.A.N.RAJAN BABU

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SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWAR LAL

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RESPONDENT(S):

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1. SUB DIVISIONAL MAGISTRATE, CHENGANNUR-689121.

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2. SUB DIVISIONAL POLICE OFFICER, CHENGANNUR-689121.

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3. SUB INSPECTOR OF POLICE, CHENGANNUR-689121.

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4. TAHSILDAR, CHENGANNUR-689121.

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5. VILLAGE OFFICER, CHENGANNUR-689121.

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6. M. SUKUMARAN ACHARI, NALUKETTIL VEEDU, PAUDIKKONAM P.O., MUKKIKKADA, TRIVANDRUM-695614.

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Crl.Rev.Pet.No. 1757 of 2016 () --------------------------------

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7. K. VIJAYAN, ELANJIKKAL VEEDU, KANNAMNGALAM SOUTH, CHETTIKULANGARA P.O., MAVELIKKARA-690106.

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R1 TO R5 BY PUBLIC PROSECUTOR SRI. K.B. UDAYAKUMAR R6& R7 BY SRI.N.N.SUGUNAPALAN (SR. ADV.) BY ADV. SRI.S.SUJIN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 1757 of 2016 ()

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APPENDIX

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PETITIONER(S)' ANNEXURES

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A1	TRUE COPY OF THE RESOLUTION DATED 10.03.2001
A2	TRUE COPY OF THE ORDER OF THE KERALA GOVERNMENT DATED 17.4.2002
A3	TRUE COPY OF THE ORDER DATED 18.4.2002 CHANGING THE NAME OF AKVMS AS KERALA VISHWA KARMA SABHA
A4	TRUE COPY OF THE ORDER NO.L2/20453/01 DATED 30.5.2006
A5	TRUE COPY OF THE COMMON JUDGMENT IN OS. NOS.83/08, 84/08, 85/08 AND 86/08
A6	TRUE COPY OF THE COMMON JUDGMENT DATED 22.10.2016 PASSED BYT HE ADDITIONAL DISTRICT COURT, MAVELIKKARA
A7	TRUE COPY OF THE CIRCULAR DATED 1.1.04 ISSUED BY THE PETITIONER AND OTHER OFFICE BEARERS
A8	TRUE COPY OF THE NOTICE DATED 27.9.04 ISSUED FROM HEAD OFFICE, VANJIPPUZHA BUNGLOW MUNDANKAVU
A9	TRUE COPY OF THE CIRCULAR NO.1/2007 DATED 14.1.2007 ISSUED FROM HEAD OFFICE, CHENGANNUR
A10	TRUE COPY OF THE CIRCULAR NO.1/2008 DATED 16.3.2008 ISSUED BY KERALA VISHWA KARMA SABHA
A11	TRUE COPY OF THE CIRCULAR NO.1/2009 DATED 15.3.08 ISSUED BY KERALA VISHWA KARMA SABHA
A12	TRUE COPY OF THE CIRCULAR DATED 27.07.2009 ISSUED BY KERALA VISHWA KARMA SABHA
A13	TRUE COPY OF THE NOTICE DATED 18.4.2010 ISSUED BY KERALA VISHWA KARMA SABHA
A14	TRUE COPY OF THE NOTICE PUBLISHED BY KERALA VISHWA KARMA SABHA OFFERING SUPPORT TO UDF

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Crl.Rev.Pet.No. 1757 of 2016 ()

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A15	TRUE COPY OF THE DIRECTORS OF K.V.	MINUTES OF MEETING OF BOARD OF K.S. DATED 24.7.2011
A16	TRUE COPY OF THE KERALA VISHWA KAR	MINUTES OF COUNCIL YOGAM OF MA SABHA DATED 1.9.2014
A17	TRUE COPY OF THE OF KERALA VISHWA	MINUTES OF THE COUNCIL METING KARMA SABHA DATED 10.6.2015
A18	TRUE COPY OF THE KERALA VISHWA KAR 24.7.2016	MINUTES OF THE MEETING OF MA SABHA AND ASSOCIATION DATED
A19	TRUE COPY OF THE PAYMENT OF PROPER MUNICIPALITY	RECEIPT DATED 29.5.2013 FOR TY TAX ISSUED FROM CHENGANNUR
A20	TRUE COPY OF THE 17.5.2014 ISSUED CHENGANNUR	ELECTRICITY BILL DATED FROM ELECTRICITY OFFICE,
A21	TRUE COPY OF TH E CHENGANNUR SECTIO	LECTRICITY BILL ISSUED FROM N DATED 11.7.2015
A22	TRUE COPY OF THE 11.3.2016 ISSUED	ELECTRICITY BILL DATED FROM CHENGANNUR SECTION
A23	TRUE COPY OF THE OFFICE DATED 14.5	ELECTRICITY BILL OF HEAD .2016
A24	TRUE COPY OF THE 14.7.2016	ELECTRICITY BILL DATED
A25	TRUE COPY OF THE NOS.18648/2016 & COURT OF KERALA	JUDGMENT IN WPC. 15365/2009 OF THE HON'BLE
A26	TRUE COPY OF THE DATED 30.6.2016	ORDER OF THIS HON'BLE COURT
A27	TRUE COPY OF THE 23.8.2016	ORDER NO.L2-20453/01 DATED
A28 A29	TRUE COPY OF THE BEFORE THE SUB IN TRUE COPY OF THE	COMPLAINT DATED 1.9.2016 FILED SPECTOR OF POLICE, CHENGANNUR COMPLAINT DATED 3.9.2016

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Crl.Rev.Pet.No. 1757 of 2016 ()

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A30	TRUE COPY OF THE COMPLAINT FILED BEFORE THE 1ST RESPONDENT DATED 26.9.2016
A31	TRUE COPY OF THE NEWS APPEARED IN MATHRUBHOOMI DAILY DATED 2.11.2016
A32	TRUE COPY OF THE REPORT NO.55/16 DATED 26.9.2016 OF SUB INSPECTOR OF POLICE TO RDO, CHENGANNUR
A33	TRUE COPY OF THE STATEMENT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT
A34	TRUE COPY OF THE STATEMENT FILED BY 7TH RESPONDENT BEFORE THE 1ST RESPONDENT
A35	TRUE COPY OF THE CAVEAT PETITION FILED BY GENERAL CONVENER P.K. SAHADEVAN BEFORE THE DISTRICT COURT (VACATION COURT), ALAPPUZHA AS C.M.P NO.24/2014 DATED 19.4.2014
A36	TRUE COPY OF THE STATEMENT FILED FORMER GENERAL SECRETARY SRI. M.V. RAJAGOPAL
A37	TRUE COPY OF THE OS.322/2016 FILED BEFORE THE MUNSIFF'S COURT
A38	TRUE COPY OF THE LETTER DATED 17.10.2016
A39	TRUE COPY OF THE NOTICE DATED 1.10.2016 ISSUED BY THE 1ST RESPONDENT
A40	TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF 2ND RESPONDENT DATED 17.10.2016
A40(A)	TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF 2ND RESPONDENT DATED 25.11.2016
A40(B)	TRUE COPY OF THE LETTER ISSUED FROM THE OFFICE OF 2ND RESPONDENT DATED 19.12.2016
A41	TRUE COPY OF THE PROCEEDINGS OF I.G. OF REGISTRATION, THIRUVANANTHAPURAM DATED 16.5.2006
A42	TRUE COPY OF THE JUDGEMENT IN CMA. NO.8/2015 OF THE CURT OF SUB JUDGE, CHENGANNOOR DATED 27.2.2017

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Crl.Rev.Pet.No. 1757 of 2016 ()

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RESPONDENT(S)' ANNEXURE

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R6(A)	TRUE COPY OF WRIT PETITION NO.29439 WITHOUT EXHIBITS
R6(B)	TRUE COPY OF THE NOTICE DATED 17.9.2016
R6(C)	TRUE COPY OF THE NOTICE DATED NIL
R6(D)	TRUE COPY OF THE ORDER DATED 23.8.2016 ISSUED BY THE REGISTRAR, NON TRADING COMPANY
R6(E)	TRUE COPY OF THE ORDER DATED 5.9.2016 IN IA.14296/2016 IN WRIT PETITION 29439/2016 PASSED BY THIS HON'BLE COURT
R6(F)	TRUE COPY OF THE NOTICE DATED 19.9.2016 ISSUED UNDER TITLE KERALA VISWAKARMA SABHA
R6(G)	TRUE COPY OF THE MINUTES OF THE AHILA KERALA VISWAKARMA MAHASABHA DATED 16.5.2014
R6(H)	TRUE COPY OF THE PROCEEDINGS OF THE AKHILA KERALA VISWAKARMA MAHASABHA DATED 16.5.2014
R6(I)	TRUE COPY OF THE AGREEMENT WITH THE DISTRICT COLLECTOR BY THE 6TH RESPONDENT

TRUE COPY

P.S. TO JUDGE

K.ABRAHAM MATHEW, J. ============================= Crl.R.P. No.1757 of 2016

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============================ Dated this the 25^th day of August, 2017

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ORDER

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Akhila Kerala Vishwa Karma Maha Sabha is a

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registered organisation. Its head office is situated at Chengannur. On 10.03.2001 at a special general body meeting a decision was taken to change its name to Kerala Vishwa Karma Sabha. This was to facilitate merger of Vishwakarma Service Society and Tamil Vishwakarma Samuham with the Akhila Kerala Vishwa Karma Maha Sabha. But the merger was not materialised, since the proposal was not approved by the authority concerned. Disputes arose between two groups in the Akhila Kerala Vishwa Karma Maha Sabha (hereinafter called the Sabha). The petitioner who is the leader of one group claims to be the president of the Sabha. Respondents 6 and 7 claim to be the leaders of the other group. There were civil cases between the two groups. They ended in favour of the petitioner. On 18.10.2016, Sub Divisional Magistrate,

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Crl.R.P. No.1757 of 2016 -2-

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Chengannur passed the impugned order purportedly under Section 145 Cr.P.C. The order was passed after taking into consideration a report submitted by the Sub Inspector of Police, Chengannur. It was alleged that the petitioner broke opened the office room of the head office of the Sabha at 7 am on 26.09.2016 and occupied it, the other group reached the premises of the office and attempted to throw out the petitioner and his followers, the attempt to settle the dispute failed. In the impugned order, it is further stated that the Magistrate visited the place of occurrence at 11.30 am and he found that the situation was very tense and he was convinced that it might result in breach of peace and might create law and order problems. So, with police assistance, the Magistrate ousted the occupants including the petitioner and took possession of the office building. An enquiry was held at 11 am and the matter was adjourned for further enquiry to 30.09.2016. Both the groups appeared before the Magistrate. The Magistrate adjourned the proceedings to 08.10.2016 at the request of both the

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parties. A large number of people belonging to both groups assembled in the office premises of the Sabha. So the enquiry could not be conducted on 08.10.2016 and it was adjourned to 17.10.2016. The Sub Divisional Magistrate is stated to have recorded statement of the presidents of both groups, examined documents produced by the parties and heard them. On 18.10.2016 he passed the impugned order. He held that the petitioner could not prove that the group led by him occupied the office premises of the Sabha after the civil court entered a finding in his favour. The Magistrate handed over possession of the premises to the opposite group.

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Heard the learned counsel for the petitioner and the learned Senior counsel appearing for respondents 6 and 7 and the learned Public Prosecutor.

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It is seen from the impugned order that the petitioner allegedly broke into the office of the Sabha at 7 am on 26.09.2016 and occupied it. On the very same day, the Sub Divisional Magistrate took possession of the

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Crl.R.P. No.1757 of 2016 -4-

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property and handed it over to the police.

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Sections 145 and 146 Cr.P.C. should be read

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together. Section 145 Cr.P.C. provides that whenever an Executive Magistrate is satisfied from a report of a police officer, or upon other information that a dispute which is likely to cause a breach of the peace exits 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 for the purpose of an enquiry. Section 146 Cr.P.C. empowers the Magistrate to attach the property in case of emergency. A reading of Section 146 leaves no room for doubt: possession can be taken by the Magistrate only after an order under Section 145 Cr.P.C. is passed. He cannot pass a composite order. In this case, it was not disputed before me that the initial order passed by the Magistrate was a composite order. The order is illegal. This has vitiated the proceedings.

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As mentioned earlier, the Magistrate not only

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Crl.R.P. No.1757 of 2016 -5-

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took possession of the property, but handed it over to the group led by respondents 6 and 7. Section 145 Cr.P.C. can be invoked only when the rights of the disputing parties have not been settled by a competent civil court. In this case as seen from Annexure A5 common judgment the rights of the parties were settled by the civil court. The petitioner was one of the defendants in all the suits except one, in which he was the sole defendant. The opposite group was led by one A.R.Vijayadharan, who claimed to be the Secretary of Sabha. All the suits were filed by that group. The suits were dismissed with costs and the court allowed the petitioner in this Crl.R.P to “resume the office of the organisation through court if he was not allowed to resume it”. The appeals filed by the plaintiffs in those cases were dismissed with costs by Annexure A6 judgment on 22.10.2016. The Magistrate initiated the proceedings under Section 145(1) Cr.P.C. after the dismissal of the suits filed by the opponents of the petitioner. The rights of the parties had been determined by the civil court. It was illegal for the

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Magistrate to invoke the jurisdiction under Section 145 Cr.P.C. After the final order was passed by the Magistrate the learned District Judge has dismissed the appeals with costs.

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On or about 24.09.2016 the 7^th respondent, claiming to be the General Secretary of the Sabha filed O.S.No.322/2016 in Munsiff's Court, Chengannur against the petitioner in this Crl.R.P. In paragraph 3 in Annexure 37 plaint, he admitted that after Annexure A5 judgment, the petitioner in this Crl.R.P. took possession of the property, which according to him was done by force. Whether possession was taken by force or not, it is an admission that the petitioner occupied the property after the dismissal of the suits filed by the group led by respondents 6 and 7.

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Annexure A15 minutes of the meeting of the Board of Directors shows that after the determination of the disputes between the parties by the civil court the group led by the petitioner occupied the property on 26.02.2010. It is not disputed before me that the

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document is genuine. It is in spite of all these documents, the Magistrate held that there was no evidence to prove that the petitioner had taken possession of the property after the dismissal of the suits.

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The Magistrate took the view that since the petitioner failed to prove that the group led by him took possession of the property, the group led by respondents 6 and 7 should be put in possession of the property. This is illegal. He did not examine or enter a finding that the other group had any right to occupy it. Even if it is assumed that the group led by the petitioner had no right to occupy the property, that alone cannot be a ground to hand over possession to the other group.

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It is seen from the impugned order that the Magistrate visited the property at 11.30 am on 26.09.2016 but the very same order shows that he heard both the parties at 11 am on 26.09.2016 and directed them to appear before him for enquiry. This itself is a strong circumstance to prove that it was without any bona fides the Magistrate passed the impugned order.

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Crl.R.P. No.1757 of 2016 -8-

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The object of passing an order under Section 145 Cr.P.C. is not to oust a party to the dispute, but to prevent breach of peace as held by this Court in C.M.Ibrahim & others v. Kulangara Veetil Koya

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Moideen Kutty & others [2008 (1) KLJ (1)]. In this case since this suits filed by the group led by respondents 6 and 7 were dismissed, there was no existing dispute at all. It was the duty of the Magistrate to see that the decree passed by the civil court is not sabotaged. But unfortunately he helped the group led by respondents 6 and 7 to defeat the decree passed by the civil court. The facts revealed by the documents prove that the Magistrate was determined to help the group led by respondents 6 and 7. As a public servant, he had a duty to be impartial and unbiased. But he forfeited the confidence of the public in him. He took a partisan attitude and abusing the powers given to him by the Code of Criminal Procedure he ousted the petitioner from the property, and without satisfying himself about the correctness of the claim of the group led by respondents

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6 and 7, handed over possession of the property to that group.

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Since there is cogent evidence including the admission of the group lead by respondents 6 and 7 that after disposal of the civil suits by the court, the petitioner occupied the office premises of the Sabha, the only order that may be passed by this Court is restoration possession to him.

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In the result, this Crl.R.P. is allowed. The impugned order is set aside. The first respondent Sub Divisional Magistrate is directed to restore possession of the property to the petitioner immediately.

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Sd/- K.ABRAHAM MATHEW, JUDGE

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P.R.Devadas v. Sub Divisional Magistrate

Case brief

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P.R.Devadas v. Sub Divisional Magistrate

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