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Judgment
R. Banumathi, J.—Challenging the impugned proceedings of the 1st respondent issued u/s 145 of Criminal Procedure Code in
Na.Ka.No.A1/27/2011 dated 14.06.2012 calling upon the writ petitioner to remove the obstruction caused by the petitioner for smooth flow of
sewage of flood water in S.No.81/2A1A1 of Inam Maniyachi village. In order to appreciate the contentions raised, it is necessary to refer to the
background facts. The sewage water accumulated in the town area of Kovilpatti has been running through many survey numbers in Kovilpatti town
and finally through Town S.No.52 and enters in S.No.81/2A1A1 of Inam Maniyachi village and proceeded in between writ petitioner - Lakshmi
Mills and the School run by it and then proceeded through various Survey Numbers of Alampatti and pooling in a tank which lies in S.No.232 of
Alampatti. The land in S.No.81/2A1A1 of Inam Maniyachi village is registered in the name of Lakshmi Mills. There are more than about 180
residents of Veeravanji Nagar North. The sewage collected from Veeravanji Nagar residential area is also to run through S.No.52 and other
survey numbers as stated above. The writ petitioner school is said to have put up wall in between the petitioner mills and the school run by it by
putting up a wall and obliterating the plan marked path - odai by filling earth and thereby obstructing smooth flow of sewage and flood water.
Earlier Notice dt. 30.8.2010 & W.P.No.12347 of 2010:- President of Inam Maniyachi village issued notice dated 30.8.2010 stating that the
writ petitioner had encroached upon the water channel to an extent of 13 feet by putting up wall in between mills and the school compound wall.
Challenging the said notice dated 30.8.2010, the writ petitioner School filed W.P.No.12347 of 2010. By the order dated 30.9.2010, the said writ
petition was disposed of with a direction to the writ petitioner to give explanation and further directing the President of Inam Maniyachi Panchayat
to consider the representation and pass orders in accordance with law. The writ petitioner submitted its representation stating that there was no
water/sewage channel running through the lands in S.No.81/2A1A1. Thereafter President of Inam Maniyachi village Panchayat passed the order
dated 20.10.2010 stating that there was no encroachment on the part of the petitioner mill.
Crl.O.P.No.2062 of 2011:-Because of the obstruction caused, sewage water could not flow and public of Veeravanji Nagar North along with
the Communist party (Marxist) proposed to stage demonstration and agitation on 16.2.2011. The 1st respondent convened a peace committee
meeting on 16.2.2011 and in the peace committee meeting it was agreed:-
(i) that the Kovilpatti Municipality will remove the stagnated sewage water within two days;
(ii) Revenue Divisional Officer would inspect the site and conduct enquiry and to make arrangements for draining the sewage water;
(iii) in case if no solution is possible, suitable land has to be acquired invoking emergency clause.
Accepting the said resolutions, the public agreed to withdraw the agitation. In the meanwhile, the writ petitioner filed Crl.O.P. No.2062 of 2011
seeking police protection to the petitioner and his property. Resolution of the Peace Committee meeting was informed to the Court and recording
the same, Crl.O.P. was disposed of as no further orders was necessitated.
Continued Agitation and the Survey of the Site:-
After the said Peace Committee Meeting, solution could not be reached. Public of Veeravanji Nagar North along with the Chairman of the
Municipality, Kovilpatti and also the 4th respondent conducted a fasting agitation on 10.8.2011 in which about 75 women and 60 men
participated. Stating that a permanent solution would be found, the first respondent persuaded the agitators to withdraw the fasting agitation. The
disputed field in S.No.81/2A1A1 and the surrounding sites were inspected by the revenue officials. The inspection revealed that the ""plan marked
path - odai"" has been obliterated by filling earth for construction purpose, due to which the sewage water collected from Veeravanji Nagar North
is stagnated in S.No.52 of Kovilpatti posing health hazards. The impugned proceedings in extenso refers to the proceedings of the Tahsildar in
Na.Ka.No.A2/2/11 dated 15.8.2011.
Notice issued by the 1st respondent u/s 145 of Cr.P.C., dated 29.8.2011:-According to the respondents, the writ petitioner obliterated the
plan marked path - odai"" and survey details. The sewage water from Veeravanji Nagar North stagnated posing health hazards, resulting in
continued agitation. On being satisfied that there is likelihood of breach of peace, as a preventive measure to avoid breach of peace, the 1st
respondent issued notice A1/27/2011 dated 29.8.2011 u/s 145 of Cr.P.C. calling upon the petitioner to appear before him on 16.9.2011 along
with required documents and evidence. Challenging the said notice, writ petitioner filed quash petition in Crl.O.P. No.12123 of 2011 and the said
Crl.O.P. No. 12123 of 2011 is pending. No stay was granted. After filing quash petition u/s 482 Cr.P.C., writ petitioner approached the officials
with proposal of alternative plan for flow of sewage water. The said alternative proposal was not feasible for two reasons:
(i) the sewage channel proposed was in the place situated at a higher level and sewage water cannot flow through; and
(ii) the sewage channel was of long distance involving huge expenditure and technical difficulties and not cost-effective and inconvenient.
The District Collector inspected the site on 29.5.2012. After inspecting the site and after hearing the public, the District Collector in proceedings
in Mu.A3/03/2012-1 dated 1.6.2012 directed the 1st respondent to proceed further. Thereafter the 1st respondent conducted enquiry. Based on
Tahsildar''s report in Na.Ka.No.A2/2/11 dated 15.08.2011 which is based on survey and on revenue records and other materials, on being
satisfied that the writ petitioner has obliterated ""plan marked path-odai"" by putting up construction in S.No.81/2A1A1 which is in clear violation of
Section 15(1) of the Survey and Boundaries Act and affecting the public at large and that there is every likelihood of law and order being affected,
the 1st respondent passed the impugned proceedings on 14.6.2012 u/s 145 Cr.P.C.
Challenging the impugned proceedings, writ petitioner filed the writ petition contending that S.No.81/2A1A1 is in possession and enjoyment of
the petitioner mill and there is no water channel running through the land in S.No.81/2A1A1. It is further averred that first respondent has passed
the order without giving any opportunity to the petitioner. No grounds are made out for apprehending the breach of peace, so as to invoke Section
145 Cr.P.C.
Resisting the writ petition, respondents filed counter contending that writ petitioner obliterated on ""plan marked path - odai"" by filling the earth
for construction purpose and because of the said obstruction, there was continued agitation and as a preventive measure to avoid any breach of
peace, notice u/s 145(1) Cr.P.C. was issued. It is further averred that after affording opportunity to the petitioner and based on the Tahsildar''s
report - Na.Ka.A2/2/11 dated 15.8.2011 and other materials, satisfied about the obliteration plan mark details and in view of the likelihood of the
breach of peace, passed the impugned proceedings u/s 145 Cr.P.C.
Challenging the impugned proceedings, the learned counsel for petitioner contended that the writ petitioner is the owner of S.No.81/2A1A1 of
Inam Maniyachi village, (42.69 acres of land), where the Company is running three schools and that the land in S.No.81/2A1A1 is surrounded by
a compound wall. It is further submitted that the petitioner''s possession and occupation of the land comprised in S.No.81/2A1A1 is duly
recognised by the Educational Department. Laying emphasis upon the order of the President of Inam Maniyachi village dated 20.10.2010, the
learned counsel submitted that the President of Inam Maniyachi village has given a finding that there was no water channel and that there was no
encroachment on the part of the petitioner mill and while so, the 1st respondent hastily passed the impugned order. It was further submitted that
challenging the notice issued u/s 145(1) (dated 29.8.2011), petitioner has filed quash petition and even when the Criminal Original Petition is
pending, without affording opportunity to the writ petitioner, the impugned order came to be passed and therefore the order is vitiated for violation
of principles of natural justice. The learned counsel would further submit that in any event, the 1st respondent was not justified in invoking Section
145 of Cr.P.C. and the impugned order is passed without jurisdiction.
Drawing our attention to the sequence of events and also combined Field Map of Inam Maniyachi and Kovilpatti, the learned Additional
Government Pleader Mr.Karthikeyan submitted that the plan marked path odai has been obliterated by the writ petitioner by filling earth for
construction purpose. It was submitted that the ''detailed plan mark'' was obliterated by the petitioner and because of the obstruction caused by
constructing wall, sewage water is stagnated in S.No.52 of Kovilpatti posting health hazards and affecting the public at large causing breach of law
and order and the 1st respondent was justified in invoking Section 145 of Cr.P.C. It was further submitted that even though the notice issued u/s
145(1) is challenged in a quash petition in Crl.O.P.No.12123 of 2011, no stay was granted and since there was deterioration of law and order and
likelihood of breach of peace, considering the exigency of the situation, the 1st respondent was justified in passing the impugned order.
We have heard Mr. P.Mahendran, learned counsel appearing for the 4th respondent, President of Kovilpatti Veeravanji Nagar North
Residents Nala Sangam. Learned counsel for 4th respondent submitted that the plan marked path-odai is situated as path in S.No.81/2A1A1 and
because of the obstruction of entry point of the Sewage water and flood water at the plan marked path-odai in S.No.81/2A1A1 of Inam
Maniyachi village, the sewage and drainage water is stored posing several health hazards. Learned counsel submitted that the residents of
Veeravanji Nagar North, who are hailing from middle class, are pumping out the sewage water from out of their own expenditure and with great
difficulty, the sewage water is pumped out at huge expenditure every day.
Upon consideration of the rival contentions, the following points arise for determination:-
(1) Whether the 1st respondent is justified in invoking Section 145 Cr.P.C.?
(2) Whether the impugned order is liable to be quashed for arbitrariness and violation of principles of natural justice?
Points No.1 and 2:-The Writ Petitioner is the owner of the property in S. No. 81/2A1A1 of Inam Maniyachi village, which of course, is
reflected in patta pass book. Case of writ petitioner is that there was never sewage running through the said Survey Number and writ petitioner has
not caused obstruction at the entry point of sewage and absolutely no grounds were made out to invoke Section 145 of Cr.P.C.
Let us first consider whether there were justifiable grounds for invoking Section 145 Cr.P.C.
Section 145 Cr.P.C. relates to disputes regarding possession. Section 147 Cr.P.C. relates to right of use of land or water or its boundaries.
The disputes regarding possession or use of boundaries or discharge of sewage water and sewage channel are fraught with consequence affecting
the public at large. In exercising jurisdiction u/s 145 Cr.P.C., the Magistrate is not to go into questions of title, but to meet the urgency of the
situation by maintaining the party in possession. The Magistrate can, therefore, call upon the parties to put in written statements in support of their
claim to actual possession. The order is to be served as a summons. The Magistrate is to peruse the statements, hear the parties and weigh the
evidence, in order to ascertain who was in possession at the date of the order. If possession has been wrongfully taken within two months of the
police-report or other information, or after that date and before the date of his order, the person so dispossessed is to be taken as the person in
possession. If the Magistrate is satisfied that no dispute exists, he can drop the proceedings.
To initiate proceedings u/s 145 CrPC, three requirements have to be fulfilled viz.,
(i) there must be a real breach of peace inviting such proceedings;
(ii) there must be material on record to prove the actual breach of peace; and
(iii) the Executive Magistrate shall form a subjective satisfaction to initiate such proceedings.
The object of Section 145 Cr.P.C. is mainly to maintain law and order and prevent breach of peace by maintaining one or other of the parties
in possession, which the Magistrate finds that they were in possession immediately before the dispute. Keeping in view the provision of Section
145 Cr.P.C. and its scope, let us consider the materials on record and the rival contentions of the parties.
As per the revenue records, S.No.81/2A1A1 of Inam Maniyachi village was taken over by the Government under Inam Abolition Act, 1948.
According to respondents, even before the commencement of Inam Abolition Act, 1948, as per the revenue records, the sewage water
accumulated in the town area that has been running through many survey numbers in Kovilpatti and finally through S.No.52 enters in
S.No.81/2A1A1 of Inam Maniyachi village and proceeded towards north through various survey numbers and then turning towards west in
various survey numbers of Alampatti and pooling in a tank, which lies in S.No.232 of Alampatti village. As per the revenue records, the land in
question during ""Ryotwari Survey"" a part of the area in the S.No.81/2A1A1 was marked as ""detail"" in Field Measurement Book, since the part
was in use as path and odai. As pointed out earlier, the impugned order in extenso refers to the report of the thir respondent - Tahsildar in
Na.Ka.No.A2/2/11 dated 15.08.2011. As the area was less than 20 links, it was not sub-divided as a separate survey number as per the rules of
Tamil Nadu Survey and Boundaries Act, 1923. The third respondent in his report has clearly noted about the ""Detailed Plan Marked"".
During inspection of the disputed field - S.No.81/2A1A1, it was noticed that the plan marked path-odai has been obliterated by filling earth for
construction purposes. During inspection, it was noted that the plan marked odai in all other above survey numbers was found to be in tact,
excepting S.No.81/2A1A1. Even though the petitioner contends that there was no water or drainage channel as mentioned in the notice at any
time, in his report the third respondent clearly stated above the sewage and its course in various survey numbers. The same has been referred to in
the impugned order which we may usefully refer to:-
(underlining added)
Based on the revenue records, particularly, in the the Field Measurement Book and the Tahsildar''s report and other materials, the first
respondent was satisfied about the ""detail"" (vilakki) in S.No.81/2A1A1 and that the same was obliterated by the petitioner. But as per the Survey
and Boundaries Act, ""detail"" is also a ""survey mark"". u/s 3 Sub-section (viii) of the Act, ""Survey mark"" is defined as under:
(viii) Survey mark. - ""survey mark"" means any mark or object erected, made employed or specified by a survey officer to indicate or determine or
assist in determining the position or level of any point or points.
u/s 13 of Survey and Boundaries Act, on completion of survey, once the notification is published, the same is conclusive. Section 13 reads as
under:-
Completion of demarcation to be notified. - When the survey of any land or boundary which has been notified u/s 5 has been completed in
accordance with the orders passed under Sections 9,10,11, 12-A or 12-B the survey officer shall notify the fact in the District Gazette and a copy
of such notification shall be pasted in the village chavadi, if any, of the village to which the survey relates; unless the survey so notified is modified
by a decree of Civil Court under the provisions of Section 14, the record of the survey shall be conclusive proof that the boundaries determined
and recorded therein have been correctly determined and recorded.
As per Section 15 of the Act, every registered holder of Government land is bound to maintain, renew and repair the survey marks within the
boundaries of his holding. In default of his doing so, the survey officer or the Collector may at the cost of State Government maintain, renew and
repair such survey marks, determine and apportion the cost of doing so and recover from the registered holder.
The writ petitioner Mill, being the registered holder of S.No.81/2A1A1, is bound to maintain the plan marked path-odai as per Section 15(1)
of Survey and Boundaries Act, or else the Government has every power to restore it status quo ante to preserve the larger interest of the general
public.
As pointed out earlier, during inspection, it was noticed that plan marked path-odai has been obliterated by filling earth for construction
purposes resulting in stagnation of sewage water in T.S.No.52 of Kovilpatti. As discussed earlier, there were series of demonstrations and
agitations by residents of Veeravanji Nagar North along with political parties, which was likely to affect the breach of peace in the area. In fact, the
writ petitioner''s mills itself filed Crl.O.P.No.2062 of 2011 seeking police protection. Thereafter there were continued agitations. District Collector
intervened and after inspection, the District Collector directed the 1st respondent to proceed further. In this regard, learned Additional Government
Pleader has also drawn our attention to the paper clippings reporting about the stagnation of sewage water and also placing health hazards and also
agitations by the public.
According to the 4th respondent, though the drainage and flood water from the residential area, when discharged along with S.No.81/2A1A1,
where plan marked path-odai has been running, with an ulterior motive, the writ petitioner Management put up structure and obstructed entry point
of sewage water and flood water into plan marked path-odai and that the residents are exposed to health hazards. It is further stated that the
sewage water is let into nearby land as a temporary measure at the expenditure of residents. Photographs were also produced for our perusal.
By perusal of the photographs, we found that the sewage water stagnated to a large extent abutting the compound wall with no way to flew
through. Photographs also show that sewage water so stagnated is spread till the residential area posing health hazards. Some photographs also
produced showing installation of motor for removing the stagnated water. Stagnation of sewage water posing health hazards resulted in continued
public agitation by the residents of Veeravanji Nagar North.
The writ petitioner mainly relies upon the order passed by the President of Inam Maniyachi village panchayat dated 20.10.2010, whereby the
president of Inam Maniyachi village observed that the petitioner is the owner of S.No.81/2A1A1 and that there is no encroachment or obstruction.
The observation of the Panchayat President is not based on any revenue records and the Field Measurement Book. The President of Village
Panchayat is not the competent authority to say about the village map/Field measurement Book.
As submitted by respondents 1 to 3, Field Measurement Book is an index to the field. Details/survey maps as indicated in the Field
Measurement Book are useful in deciding the future disputes. Encroachments/obstructions can be detected with reference to details marked in the
plant. According to the respondents 1 and 2, during ryotwari survey, in the above S.No.81/2A1A1, path and odai was marked as ""detail"" in Field
measurement Book. Viewed in the context of the revenue records and the submissions of respondents 1 and 2, the petitioner cannot place much
reliance upon the order dated 20.10.2010 passed by the President of Inam Maniyachi village.
Onbehalf of the writ petitioner, it was then contended that before passing the order, opportunity was not afforded to the petitioner and even
when the Crl.O.P.No.12123 of 2011 is pending, the impugned final order came to be passed and that the order is vitiated for violation of
principles of natural justice since opportunity was not afforded to the petitioner as contemplated u/s 145(4) Cr.P.C.
As per Section 145(4) Cr.P.C., the Magistrate has to peruse the statements and hearing the parties and receive all such evidence as may be
produced by them and to decide which of the parties at the date of the order made by him under sub-section (1) is in possession of the subject
matter of the dispute. The expression ""hearing the parties"" means ""hear the evidence of the parties and also peruse statements and also receive all
such evidence as may be produced by them"". As pointed out earlier, notice u/s 145(1) Cr.P.C. was issued to the petitioners on 29.8.2011 calling
upon the petitioner to appear for enquiry on 16.9.2011. The writ petitioner has chosen to file a quash petition Crl.O.P.No.12123 of 2011, in
which no stay was granted. By perusal of the impugned order, it is seen that the petitioner appeared before the 1st respondent and submitted a
letter dated 22.3.2012 making alternative proposal. The same was not accepted as the proposal was not feasible and also involving high
expenditure. Thereafter,, in pursuance of the proceedings of the 2nd respondent - District Collector, the 1st respondent proceeded further. When
the 1st respondent issued the notice u/s 145(1) Cr.P.C., the writ petitioner ought to have appeared before the authority and put forth its case and
submit the evidence and materials. Per contra, writ petitioner appeared and had only given an alternative proposal. On the other hand, the writ
petitioner only filed Quash Petition in Crl.O.P.No.12123 of 2011. Having received the notice and having not chosen to appear and produce
evidence and materials, the writ petitioner cannot complain of ""no opportunity"".
Distinction has to be made between ""no opportunity"" and ""no adequate opportunity"". Notice u/s 145(1) Cr.P.C. was issued way back on
29.8.2011 and the impugned order came to be passed only on 14.6.2012. Because of continued agitation and deterioration of law and order,
considering the exigency of the situation, the 1st respondent passed the order. While so, the writ petitioner cannot complain of non-affording of
opportunity and violation of Section 145(4) Cr.P.C.
From the available materials and the report of the Tahsildar, the 1st respondent satisfied himself that the plan marked path and odai, which was
in existence in S.No.81/2A1A1 for free flow of sewage and flood water was obliterated by the petitioner. The impugned order in extenso refers to
the continued agitation by the public and the same is supported by news paper clippings. In the larger interest of the public and to maintain
tranquility of the atmosphere, the 1st respondent passed the impugned order calling upon the writ petitioner to remove the obstruction. No
substantial grounds are made out by the petitioner warranting interference exercising jurisdiction under Article 226 of the Constitution of India. In
the result, the writ petition is dismissed. The writ petitioner is directed to remove the obstruction within two weeks from the date of this order,
failing which the authorities - respondents 1 to 3 are at liberty to remove the obstructions at the cost of petitioner. Consequently, connected M.P. is
closed. However, there is no order as to costs.