IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.11447 OF 2014(GM-RES) AND W.P.Nos.11448-11449/2014 BETWEEN:
1. Cheriyanda N.Ravindra, S/o.Nanaiah, 48 years.
2. Cheriyanda Nanaiah, S/o.Devaiah, 87 years.
3. Cheriyanda R.Sajeetha, W/o.Ravindra, 40 years.
All are residing at Kanoor Village and Post Virajpet Taluk, Kodagu District – 572 101. … Petitioners (By Sri T.A.Karumbaiah for Smt.P.C.Vinitha, Advocate) AND:
1. The Tahsildar, Virajpet Taluk, Virajpet, Kodagu District – 572 101.
2. Maratigara T.Appaiah, S/o.Thimmaiah, 56 years.
3. Maratigara T.Vasantha, S/o.Thimmaiah, 52 years.
4. Maratigara Anuja, W/o.Appaiah, 50 years.
5. Maratigara Vani, W/o.Vasantha, 42 years.
Respondents 2 to 5 are R/at Kanoor Village and Post Virajpet Taluk, Kodagu District – 572 101. ... Respondents (By Smt.Niloufer Akbar, AGA for R1: Sri N.T.Premnath, Advocate for R2 to R5) These writ petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash Annexure-B the order dated 22.02.2014 passed by the R1 and to direct R1 to give an opportunity to the petitioners to put forth their case before passing any order on merit and etc.
These writ petitions, coming on for preliminary hearing ‘B’ Group, this day, the Court, made the following:
ORDER These petitions are directed against the order dated 22.02.2014 passed by the first respondent as per Annexure-B.
2. The brief facts of the case are that mother of the first petitioner and the wife of second petitioner has entered into an agreement with respondent Nos.2 and 3 in respect of the land bearing Sy.No.71/2 of Kanoor Village, Virajpet Taluk, Kodagu District. Since the respondents have not executed the registered sale deed in favour of the mother of the first petitioner, she filed O.S.No.74/1992 before the Principal Civil Judge (Jr.Dn.), Virajpet for specific performance of the contract. The said suit was decreed on 26.10.1999. Against that judgment and decree respondent Nos. 2 and 3 have filed R.A.No.2/2000 before the District Judge, Madikeri. The said R.A. was disposed of by judgment and decree dated 31.07.2008 directing the defendants to execute the sale deed in favour of the plaintiff therein in respect of 1 acre of wet land in Sy.No.71/2 and in respect of Sy.No.69/47 measuring 2 acres is concerned, it is dismissed. Against the said judgment and decree, mother of the first petitioner has filed RSA No.2066/2008 before this Court. This Court, by order dated 17.12.2013 dismissed the appeal and thereby confirmed the judgment and decree. Liberty was also reserved to the parties to approach the Court for appropriate relief, if they have any grievance in relation to the nature of item No.2 of the properties. Instead of approaching the civil Court, the respondent Nos. 2 to 5 have trespassed into 2 acres of coffee land in Sy.No.69/47 and started to pick up the coffee crop. Then a complaint is filed by both the parties before the jurisdictional police. The police invoking Section 145 of Criminal Procedure Code directed parties not to enter into the property in question and the jurisdictional Police referred the case to the first respondent Tahasildar. The Tahasildar has passed the impugned order dated 22.02.2014 vide Annexure-B. Being aggrieved by the same, petitioners have filed these writ petitions.
3. The learned counsel for the petitioners submits that the order passed by the Tahasildar on 22.02.2014 is contrary to Section 145 of Cr.P.C. Without giving any notice the impugned order is passed. Hence, he sought for quashing the impugned order and to allow these writ petitions.
4. Per contra, learned Additional Government Advocate appearing for the State has defended the order passed by the Tahasildar. The Tahasildar has initiated the proceedings under Section 145 of Cr.P.C. on the basis of the information submitted by the jurisdictional Police.
5. Heard learned counsel for the parties and perused the writ papers.
6. Section 145 of Cr.P.C. is extracted hereinbelow:
“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 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 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 the 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 thanks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-ection (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 when 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 to proceed under section 107.”
7. Section 145(4) Cr.P.C. is very clear that before passing the order parties have to be given an opportunity to adduce the evidence. Without giving any notice to the parties, without giving an opportunity of hearing to the parties, contrary to the provisions of Section 145 Cr.P.C. the impugned order dated 22.02.2014 (Annexure-B) is passed. Hence, it requires to be set aside.
8. Accordingly, writ petitions are allowed. The impugned order dated 22.02.2014 (Annexure-B) passed by the first respondent Tahasildar is set aside. The matter is remitted back to the Tahasildar with a direction to give notice to the parties and after hearing them pass appropriate orders in accordance with law.
Sd/- JUDGE Cm/-