B. J. LINGEGOWDA v. H. D. GANGAEAJ — 1972 DIGILAW 35 (KAR)

( 1 ) THE above criminal petition by the members of the first party is for quashing the preliminary order passed by the Sub-Divisional Magistrate , of Bangalore Sub-Division (to be hereinafter referred to as the Executive magistrate), in No. Judl. 29 of 1971 dt. 29-11-1971, passed under S. 145 (1) of the Crpc. directing the parties to appear before him and put in written statements of their claims as respects the actual possession of the premises situate in Race Couse Road, Bangalore-9, known as MPCC. (O) office. ( 2 ) ON a report from -the Sub-Inspector of Police, High Grounds police Station, Bangalore and also a statement made by the said Sub-Inspector before the Executive Magistrate, he was satisfied that the dispute likely to cause breach of the peace existed between the members of the first and the second parties concerning the possession of the aforesaid premises situated in the Race Course Road along with the equipments therein. The learned Executive Magistrate passed the following preliminary order as required under S. 145 (1) Crpc. :" Whereas credible information has been laid before me by the sub-Inspector of Police, High Grounds Police Station, Bangalore within the jurisdiction of this Court, that there is clash between the two parties referred to above, with regard to the possession of premises situated in Race Course Road, Bangalore, where the MPCC. (O) Office is situated and I have gone through the reports of the police and I am satisfied from the said report that a dispute likely to cause a breach of peace exists concerning the said premises and I hereby require the parties referred to above to attend this Court in, person or by pleader to put in written statements of their r spective ' claims as respects the fact of actual possession of the subject of dispute and further require them to produce such documents or to adduce, by putting in affidavits and evidence of such persons as they rely upon in support of such claims. To prevent any committal of breach of peace, I hereby order the attachment of the said premises and direct the Tahsildar, Bangalore North to take possession of the premises in dispute as given in the Schedule. Issue notices to the parties to appear on 3-12-1971. Given under my hand and seal of this "this day of the 29th november 1971. Sd. /. Issue notices to the parties to appear on 3-12-1971. Given under my hand and seal of this "this day of the 29th november 1971. Sd. /. Sub-Divisional Magistrate, Bangalore, Sub-Diviison, Bangalore. " schedule premises situated in Race Course Road, Bangalore-9 where the mpcc. (O) Office is situated bounded by roads on three sides and sri Renukacharya College on the other side. Sd/. Sub-Divisional Magistrate, Bangalore, Sub-Division; Bangalore. "as it -was a case of emergency, the Executive Magistrate passed an order attaching the premises and directed the Tahsildar as receiver to take possession of the premises. The Tahsildar took possession of the premises in pursuance of the preliminary order. As required under sub-sec. (3) of the S. 145 of the Crpc. copy of the order was served on members of both the parties. The members of the first party did not appear before the executive Magistrate and file their statements as respects the fact of actual possession of the subject matter of dispute, but they approached this Court and filed the above criminal revision petition, challenging the jurisdiction of the Executive Magistrate to invoke the aid of the provisions of S. 145 of the Crpc. and attachment of the property said to be in their possession. ( 3 ) THE material facts culminating in the passing of the impugned order by the Executive Magistrate are: The members of the first and the second parties belong to two rival groups of the Indian National Congress, the members of the first party belong to MPCC. (O) Group and the members of the second party belong to MPCC (R) group. The premises in question is said to be in the possession of the members of the first party ever since its construction. After the decision of the Supreme Court in what is popularly known as Symbol case between these two rival groups of the Indian National Congress, it is alleged that the members of the second party were resorting to violent methods to take possession of the premises in question. The members of the first party approached the police for protection of their property popularly known as Congress bhavan in the Race Course Road, Bangalore. The authorities had posted a contingent) of police for protection. The members of the first party approached the police for protection of their property popularly known as Congress bhavan in the Race Course Road, Bangalore. The authorities had posted a contingent) of police for protection. It is alleged that in spite of the plolice guard, the members of the second party came in a body to occupy the Congress Bhavan by force armed with lathis, cross-bars and deadly weapons like stones and knives and jumped over the compund wall simultaneously from all sides and approached the main entrance of the building which has a collapsible iron gate and broke open the gate with the help of crow-bars and forced entry into the premises and caused unprecedented disturbances in the office by thowing files, records and damaged almirahs. It is also alleged that an attempt was made to assault the acting President. The first member of the first party complained to the police authorities as per annexures 'a' 'b' and 'c' in the case. On receipt of these complaints, the Subinspector of Police, high Grounds Police Station, Bangalore, filed a report before the Sub-Divisional Magistrate on 29-11-1971. The learned Executive Magistrate, on a perusal of the report made by the sub-Inspector of Police passed the impugned order which has been now challenged in this petition. ( 4 ) MR. Venkateshwarrao, learned Advocate for the members of the first party firstly contended that the learned Executive Magistrate has wrongly exercised his discretion in invoking the aid of Sec. 145 (1) of the crpc. and passing the impugned order. In support of this contention, he urged that the learned Executive Magistrate was required under S. 145 (1) of the Crpc. to decide whether the dispute in respect of the immovable property in question was bonafide or not. He argued that in the absence of bonafide dispute regarding the actual possession, the Magistrate was wholly wrong in invoking the provisions of S. 145 of the Crpc. He nextly contended that the facts and circumstances of this case disclosed at the outset that the members of the first party were admittedly in possession of the premises in question. Therefore, he urged that the learned Executive magistrate has committed an error of jurisdiction in not invoking the aid of S. 107 of the Crpc. to safeguard the possession of the members of the first party. ( 5 ) ON the other hand, Mr. Therefore, he urged that the learned Executive magistrate has committed an error of jurisdiction in not invoking the aid of S. 107 of the Crpc. to safeguard the possession of the members of the first party. ( 5 ) ON the other hand, Mr. R. M. Patil, learned Advocate for the members of the second party, contended that the dispute referred to in sub-sec. (1) of S. 145 of the Crpc. is only a dispute and the Executive magistrate was not at that stage empowered under sub-sec. (1) of S. 145 of the Crpc. to go into the question and decide whether the dispute is bonafide or not. Secondly, he contended that the members of the second party did not get an opportunity to state their case before the Executive magistrate with regard to their actual prossession of the premises in question. He urged on behalf of the members of the second party that after the decision of the Supreme Court in the Symbol case declaring the congress (R) as representing the Indian National Congress, it was MPCC (R) that was in actual possession of the premises in question all through and not the discredited rival MPCC (O) group represented by the members of the first paty. ( 6 ) THE learned Government Pleader while adopting the first contention of Sri R. M. Patil, contended that the Executive Magistrate had enough material to pass an order as required under S. 145 (1) of the Crpc. As a case of emergency, he was well within his powers to pass the order of attachment and appointing a receiver. Secondly, he contended that this court cannot go into the question of sufficiency of material which satisfied the Executive Magistrate to pass the impugned order in excess of its revisional powers. ( 7 ) THE points for decision are: (1 ). Whether the Executive Magistrate while invoking the aid of s. 145 (1) of the Crpc. is required to decide whether the dispute in respect of immovable property is bonafide or not or whether a mere existing dispute likely to cause a breach of the peace concerning any immovable property is sufficient? (2 ). Whether in the facts and circumstances of this case, the preliminary order passed against both the parties along with an order of attachment under S. 145 Crpc. instead of having re-course to S. 107 Crpc. (2 ). Whether in the facts and circumstances of this case, the preliminary order passed against both the parties along with an order of attachment under S. 145 Crpc. instead of having re-course to S. 107 Crpc. is an order without jurisdiction under S. 145 of the Crpc. ? ( 8 ) AS already stated, Mr. Venkateshwarra, learned Advocate for the first party, urged in support of his contention that the first party members were admittedly in possession and that the members of the second party were trespassers who invaded the office in question and there was no bonafide dispute regarding the actual possession of the immoveable property in question. Therefore, he urged that the learned Executive magistrate has erred in invoking the aid of S. 145 (1) of the Crpc. to prevent the breach of the peace. He invited my attention to annexure 'c' dt. 13-11-1971, annexure 'a' dt. 29-11-1971 and annexure 'b' dt. 1-12-1971. All these annexures have been addressed to the Police Officers in the City of bangalore. They contain a statement that the office in question situate in the Race Course Road, Bangalore-9 was in possession of the members of the first party and that the members ot the second might try to take illegal possession of the building and premises in their possession. Relying on the above material, Mr. Venkateshwarrao strongly contended that admittedly the MPCC (O) was in possession of the office in question and there was complete absence of any bonafide dispute regarding the actual possession before the Executive Magistrate. Therefore, he urged that the learned Executive Magistrate should have come to the conclusion that there was no bonafide dispute with regard to the actual possession and should not have taken action as required under S. 145 (1), Crpc. In support of his second contention, Mr. Venkateshwarrao urged that it was the duty of the Executive Magistrate to have protected the interests of the members of the first party by taking action against the members of the second pary u s 107 of the Crpc. to prevent the breach of the peace. He argued that the Executive Magistrate, failed to understand the provisions of Sec. 145 (1) which are designed to protect deprivation of possession by persons taking law into their own hands and not to deprive the party which is in actual possession. Mr. to prevent the breach of the peace. He argued that the Executive Magistrate, failed to understand the provisions of Sec. 145 (1) which are designed to protect deprivation of possession by persons taking law into their own hands and not to deprive the party which is in actual possession. Mr. Venkateshwarrao relied upon a number of decisions of this Court, of other High Courts and of the Supreme Court in support of his stand. But all those decisions have dealt with the disputes concerning immoveable property of individuals and not with organisations represented by office bearers. But in the instant case the members of these two political parties do not and cannot claim any individual interest except agitating the rights on behalf of the political parties they represent. Therefore, these decisions are distinguishable on facts and hence they do not bear on the facts of the present case. Therefore, it is unnecessary to refer to all of them. Sri R. M. Patil placed reliance on the decision in E. S. John v. P. K. Keshvan Nair, 1965 Ker. L. T. 1135. in support of his contention that the Magistrate is not required at the stage of passing the preliminary order under sub-sec. (1) of S. 145 to enquire whether the dispute is bonafide or not. Reference will presently be made to this decision. ( 9 ) THE Sub-Inspector of Police, High Grounds Police Station, has referred to the several complaints and claims made by the first party members and at the end of his report, he has stated as follows:" On receipt of this complaint, I informed the Inspector of Police, sesl. adripuram Sub. Dn.-and I accompanied him to the spot and found a huge gathering who were making attempts to enter the premises where mpcc. Office is located. As the crowd was huge, the mob could not be controlled unless forcible action was taken according to law. I observed that the main gate has been damaged by the crowd. Several advices given by the police were in vain. It was found that two parties gathered together claming rights of possession over the said premises. Hence, I have submitted this report praying for action under section 145 Crpc. I observed that the main gate has been damaged by the crowd. Several advices given by the police were in vain. It was found that two parties gathered together claming rights of possession over the said premises. Hence, I have submitted this report praying for action under section 145 Crpc. I also apprehend the likelihood of committal of breach of peace in the vicinity owing to the above dispute and I pray the Hon'ble Court to pass an order u|s 145 (4) proviso (3) of Crpc. to maintain law and order in the vicinity in public interest or else, I am afraid there may be danger to the properties and lives. "whatever mav be the claim put forth on behalf of both the parties, the report made by the Sub-Inspector of Police clearly shows that the two parties gathered together claiming rights of possession over the said premises and he also apprehended the likelihood of beach of the peace in the locality. ( 10 ) BEFORE invoking the aid of S. 145 (1), the Executive Magistrate has to be satisfied from police report or other information that a dispute likely to cause breach of the peace exists concerning an immoveable property within the local limits of his jurisdiction. Then he shall make an order in writing stating the grounds of his being so satisfied, requiring the parties concerned in such dispute to attend his Court in person or by pleader within the time fixed by the Magistrate and put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and further require them to put in such documents or to adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. It is clear from the preliminary order that the Magistrate was satisfied from the police report that a dispute likely to cause breach of the peace existed concerning the premises in question and required the parties concerned in the dispute to attend his court and put in written statements of their respective, claims. ( 11 ) THE crucial question for determination is: what is the meaning of the word 'dispute' used in sub-sec. (1) of S. 145 of the Crpc. and under what circumstances the Executive Magistrate should have recourse to s. 107 of the Crpc. ( 11 ) THE crucial question for determination is: what is the meaning of the word 'dispute' used in sub-sec. (1) of S. 145 of the Crpc. and under what circumstances the Executive Magistrate should have recourse to s. 107 of the Crpc. instead of S. 145 of the Crpc. to prevent the breach of the peace. As already stated, Mr. Venkateshwarrao contended that the word 'dispute' does not mean and include each and every dispute but it means and includes only a bonafide dispute. Further, he contended that where there is no bonafide dispute, with regard to the actual possession, the Executive Magistrate is required under the law to invoke the aid of s. 107 of the Crpc. and not S. 145 of the Crpc. Mr. R. M. Patil disputed this legal position and contended that the meaning of the word 'dispute' should be taken in the ordinary sense and whenever a dispute exists concerning the possession of any immoveable property and if there is likelihood of a breach of the peace, the Executive Magistrate is not required under the law to make an enquiry to find out whether the dispute is bonafide or not, but must take action as required under sub-sec. (1) of s. 145 of the Crpc. to prevent the breach of the peace. According to him, for the application of S. 107 Crpc. the Magistrate has to ascertain which cf the parties is in actual possession of the property which means that he should hold an enquiry which is not contemplated under sub-sec. (1) of s. 145 of the Crpc. The dictionary meaning of the word 'dispute' is a quarrel. Therefore, it does not mean, in the ordinary sense, bonafide dispute. Any quarrel concerning an immoveable property with regard to the actual possession is sufficient to clothe the Executive Magistrate to invoke the aid of S. 145 (1) of the Crpc. to prevent a breach of the peace. ( 12 ) THE word 'dispute' found in sub-sec. (1) of S. 145 of the Crpc. and when proceedings under S. 107 Crpc. are appropriate, have been dealt with by the Kerala High Court in E. S. John v. P. K. Kesavan Nair (1 ). to prevent a breach of the peace. ( 12 ) THE word 'dispute' found in sub-sec. (1) of S. 145 of the Crpc. and when proceedings under S. 107 Crpc. are appropriate, have been dealt with by the Kerala High Court in E. S. John v. P. K. Kesavan Nair (1 ). To appreciate the ratio of the decision laid down by the Kerala high Court to the facts and circumstances of this case, it is necessary to quote first the facts of that case which are:" On a report from the Sub-Inspector of Police, Pathanathitta. the executive First Class Magistrate was satisfied that dispute likely to cause a breach of the peace existed between A and B parties concerning the possession of the Arva Bharathi Vidya Mandiram High School buildings, equipments and premises and he made a preliminary order on 1-6-1964 under S. 145 (1) calling upon the parties to appear before him and put in written statements of their respective claims to possession and to produce documents and affidavits in support of their case. Being a case of emergency learned Magistrate also attached the property and appointed a receiver for the conduct of the school. No. l of the A-partv claiming to be in possession of the school building and equipment and being recognised by the Government as the correspondent of the school presented a petition to the Court statins that proceeding under S. 145 was uncalled for and may be dropped and attachment be vacated. According to him the school and the entire property concerned in the case belonged to No. 2 of the A party and for valuable consideration she had transferred her entire rights to His grace the Archbishop of Trivandrum as per a registered sale-deed no. 849 dt. 2-3-1964. It is stated that till the assignment she was in actual possession and management of the school and thereafter a joint application was made and the Government has approved the change of management and recognised No. 1 of the A-party as the manager of the school and ever since the transfer No. 1 of the A-party has been in possession and management. According to him none of respondents (B-Party) are in possession and even if they have any imaginary claims they have to establish their rights in a Civil Court and cannot be allowed to take the law into their own hands and create troble and if they are bent on creating mischief the proper thing for the court to have done is to initiate proceedings against them under s. 107 Crpc. The case of the B-Party was that the sale deed Ext P1 is ab initio void as prior sanction under S. 6 of the Kerala Education act has not been obtained, that No. 2 of the A-Party had no ownership, that she was in possession only as a trustee on behalf of the Hindu public and as she had no exclusive possession she could not have transferred any title or possession to the Archbishop. " ( 13 ) IN that case also, contentions similar to those raised by Mr. Venkateshwarrao were raised on behalf of the parties who represented two rival groups of the same organisation. Govinda Menon J. has observed at page 1137 of the judgment thus: learned Magisrtate on the -rival contention set up by the parties and the report of the police was convinced that there was a despute and ascramble for possession of the properties and that there was every likelihood of a breach of the peace and he took the view that the only possible way of preserving the peace was to attach the pro perties and initiate proceedings under S. 145 Crpc. He probably felt that he. could not at that stage find A-party to be in possession so as to initiate proceedings against the B-Party under S. 107 Crpc. All the documents prima facie show that the properties were owned by no. 2 of the A-party and that she was in possession and management and that she had transferred her rights to the Archbhishop, but before initiating proceedings under S. 107 Crpc. , the learned Magistrate would have to ascertain which of the parties is in actual possession of the properties and he would have thought that this could be done more conveniently by proceedings under S. 145 Crpc. . . . . . . , the learned Magistrate would have to ascertain which of the parties is in actual possession of the properties and he would have thought that this could be done more conveniently by proceedings under S. 145 Crpc. . . . . . . The word used in the section is only 'dispute' and in my opinion the word could have beeen used only in its ordinary sense of disagreement struggle, scramble or quarrel for possession of land which is likely to lead to a breach of the peace. Whether the word 'dispute' refers only to ''bonafide' disputes has been considered by the full Bench of the Calcutta High Court in Agni Kumar Das v. Mantazoddin (AIR. 1928 Cal. 610), where it was held that the word 'dispute' means actual disagreement existing between the parties at the time of the proceedings under S. 145. I am tempted to agree with the view taken in this case. If the Magistrate is required to decide whether a dispute is bonafide or not it would be to require him to go into the question of merits or the claims of a party to a right to possess the subject of dispute, which he is forbidden to do by sub-sec. (4 ). The argument, therefore, that the word 'dispute' should be read as 'bonafide dispute' cannot in my judgment be accepted. In exercising the discretion as to whether one section or the other is the more appropriate section the magistrate will regard the supreme necessity of maintaining the public peace. In certain cases he may, on the materials available before him, decide that proceedings under S. 107 Crpc. has to be taken. However, the discretion as to what is the more appropriate action to be taken is to be exercised on the particular facts of each case considered as a whole and by an officer with the knowledge of the local condition. Unless it could be stated that the magistrate has acted clearly without jurisdiction it will not be proper for this court sitting in revision to interfere with the discretion exercised by the Executive Magistrate. It may be that on the documents or affidavits which they may produce the A-Party would be able to prove that they are in possession and management and that the claim set up by the other side is a mere pretence. It may be that on the documents or affidavits which they may produce the A-Party would be able to prove that they are in possession and management and that the claim set up by the other side is a mere pretence. But that is a matter which would have to be decided by the learned Magistrate at the enquiry. . . ,. . . . " i am in respectful agreement with the observations made in the above decision. The ratio of the above decision is a clear answer to the two contenation of Sri Venkateshwarrao. ( 14 ) MR Venkateshwarrao tried to distinguish the facts of the present case from the facts of the case stated above. He pointed out that the parties after the preliminary order was passed under S. 145 (1) Crpc. and served on them, filed their written statements in respect of their respective claims and that A-party wanted the poceedings under S. 145 to be dropped and the attachment vacated as those proceedings were uncalled for. He pointed out that that stage has not been reached in this case. This is exactly the grievance of Mr. R. M Patil that before both the parties could file their written statements of their respective claims as respects fact of actual possession of the subject matter of dispute, the members of the first party have come up in revision to this Court. The case for the members of the first partv in the instant case is no better than the one dealt with in the decision cited above In the decision cited above, all the documents prima facie showed that the properties were owned by no. 2 of the A-party and that she was in possession and management and that she had transferred her rights to the Archbishop Nevertheless, the learned Magistrate took the view that the only wav of preserving the peace was to attach the properties and initiate proceeding under S 145 Crpc. 2 of the A-party and that she was in possession and management and that she had transferred her rights to the Archbishop Nevertheless, the learned Magistrate took the view that the only wav of preserving the peace was to attach the properties and initiate proceeding under S 145 Crpc. which was upheld bv the Kerala High Court This is precisely what the learned Executive Magistrate has done in the instant case The learned executive Magistrate was not required under the law to make an enauiry about the bonafide dispute with refard to actual possession at the time of the passing of the impugned order That stage comes only after the written statements are filed and other evidence produced by the parties to the dispute concerning the immovable property ( 15 ) FROM a perusal of the complaints made by the members of ths first party, the report of the Sub-Inspector of Police and the statement of the Sub-Inspector of Police before the Executive Magistrate, it is not possible to sav that there was no sufficient material for the subiective satisfaction of the Magistrate to come to the conclusion that a dispute concerning the premises in Question likely to cause a breach of the peace existed Tt is clear from Annexure 'b' that there was a big gathering of persons representing both the parties and that the collapsihle gate of the permises had been cut open and a" attempt was made to assault the Acting President This material was sufficient for the Magistrate to apprehend a breach of the peace. ( 16 ) IN those circumstances, the Executive Magistrate who is saddled with the responsibility of maintaining law and order is required to act promptly to prevent the breach of the peace. The discretion as to what is the appropriate action to be taken is to be exercised on the particular facts of each case considered as a whole by an officer with the knowledge of the local condition. The discretion as to what is the appropriate action to be taken is to be exercised on the particular facts of each case considered as a whole by an officer with the knowledge of the local condition. If prompt action had not been taken, it is not uncommon in a city like Bangalore that such dispute which is likely to cause a breach of the peace in that locality would have spread like a wild fire involving the destruction of public properties and lives of innocent citizens in other localities also, if an attempt was made by the authority maintaining law and order to suppress the feeling of one party and uphold the cause of the other party, especially when both the parties which once belonged to one organisaation, quarrel and are in disagreement as to the possession of the premises, and feelings between them are running high. Only prompt action would prevent both the parties from doing anything which is likely to cause a breach of the peace. The Executive Magistrate and the authorities have acted with promptitude to avert the possibility of grave disturbance to the public peace and tranquillity. They cannot be blamed. ( 17 ) FOR the reasons stated above, the Executive Magistrate while invoking the and of. S. 145 (1.) of the Crpc. and before passing a preliminary order is not required to decide whether the dispute in respect ol an immoveable property is bonafide or not. A dispute, in the ordinary sense of disagreement, struggle, scramble or quarrel for possession of an immoveable property wnich is likely to cause a breach of the peace is sufficient for the Executive Magistrate to invoke the and of S. l40 (l) Crpc. In those circumstances, it was within the discretion of the Executive Magistrate to decide as to the appropriate action to be taken on the materials before him either under S. 145 or under S. 107 Crpc. In the circumstances it is not possible to say that the Magistrate while passing the impugned order acted without jurisdiction. Therefore, it will not be proper lor this court sitting in revision to interfere with the discretion exercised by the executive Magistrate. ( 18 ) FOR the reasons stated above, the criminal petition fails and the same is dismissed. In the circumstances it is not possible to say that the Magistrate while passing the impugned order acted without jurisdiction. Therefore, it will not be proper lor this court sitting in revision to interfere with the discretion exercised by the executive Magistrate. ( 18 ) FOR the reasons stated above, the criminal petition fails and the same is dismissed. The learned Magistrate with now post the case for hearing to a near date after notice to the parties and dispose of the case as expeditiously as possible. Send the records to the Executive Magistrate who is warned not to be influenced by any observation made by this court, in the course of the order. He is independent to decide the issues before him in accordance with law. --- *** --- .