- (1.) THE subject matter of dispute relates to the possession of land comprised in T.S.No.4800/ 11, T.Nagar Village corresponding to Plot No.7, New Giri Road, T.Nagar, Madras-17. THE Inspector of Police, Law and Order, Teynampet Police Station, the third respondent herein, appeared to have submitted a report in Crime No.E3/1674/91 under Sec.145, Crl.P.C. to the Tahsildar and Executive Magistrate, Mambalam-Guindy Taluk, Madras, as to the existence of a situation affecting the peace and harmony of the locality, as a conse-quenceof a scramble for possession of the subject matter of dispute between the revision petitioners herein (A Party) and respondents 1 and 2 herein (B Party), and the same was taken on file as B7/ 24093/91. THE Executive Magistrate, thereafter, sent subpoena to the respective parties, requiring them to appear before him on the date specified to give material evidence with regard to the proceedings initiated under Sec.145, Crl.P.C. against them. In response to the same, the parties appeared to have entered appearance and submitted their written representations in projection of their claims. THE Executive Magistrate, by order dated 9.3.1992, passed the following Order: "It appears to me, on the grounds duly recorded, that a dispute, likely to induce a breach of the peace, existed between Thiru G.Sethuraman and others hereinafter called the "A" Party and Miss. Meenakshi and T.S.Meenakshi Sundaram hereinafter called the "B" Party residing at No.23, Chinna Reddy Street, Madras 8 and at No.47, Giri Road, T.Nagar, Madras-17 respectively concerning certain dispute over the possession of land comprised in T.S.No.4800/11 T.Nagar Village corresponding to Plot No.7, New Giri Road, T.Nagar Madras-17 situate within my local jurisdiction, all the said parties were called upon to give in a written statement of their respective claims as to the fact of actual possession of the said land morefully described in the Schedule hereto and being satisfied by due inquiry and thereupon, without reference to the merits of the claim of either of the said parties to the legal right of possession, that the claim of actual possession by the said Miss.Meenakshi Ammal and T.S.Meenakshi Sundaram is true; I do decide and declare that they are in possession of the said property as described in the schedule and entitled to retain such possession until ousted by due course of law, and do strictly forbid any disturbance of their possession in the meantime."
(2.) THE aggrieved "A" Party came forward with the present action. When the matter was listed for hearing on 13.3.1992, notice of motion returnable by one week was ordered. "B" Party, respondents 1 and 2, entered appearance through a counsel of their choice and the third respondent was represented by the learned Government Advocate. Learned counsel appearing for the petitioners would assail the impugned order by placing the following points for consideration: (i) The Executive Magistrate inheres the jurisdiction to proceed under Sec. 145(1), Crl.P.C. only when he is satisfied, on a report of the -police officer or upon other information, that a dispute, likely to cause breach of peace, exists concerning any land or water or the boundaries there of within his local jurisdiction. In the instant case, no preliminary order as contemplated under Sec.l45(1), Crl.P.C. had been passed by the Magistrate before ever he sent subpoena to the parties concerned, requiring them to appear before him, and the non-passing of the preliminary order is bad in law vitiating the entirety of the proceedings. (ii) Nothing emerges from the impugned order as to the Magistrate having applied his mind as to the projection of the respective claims of parties, reflected by the materials in the shape of affidavits, evidence - oral and documentary, in arriving at a decision as to the factual or actual possession of the subject matter of dispute by the "B" Party, notwithstanding the fact that he erred in his opinion that the possession of the subject matter of dispute by the "B" Party was true. This approach of the Executive Magistrate is violative of the mandatory provision adumbrated in Sub-sec. (4) of Sec.145 which by itself is sufficient to quash the proceedings.
(3.) LEARNED counsel for respondents 1 and 2 would, however, repel such submissions, while learned Government Advocate appearing for third respondent left the matter to the discretion of the court.;