Akhila Kerala Vishwa Karma Maha Sabha v. Sub Divisional Magistrate, Chengannur & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **FRIDAY, THE 25TH DAY OF AUGUST 2017/3RD BHADRA, 1939** **Crl.Rev.Pet.No. 1757 of 2016 () -------------------------------AGAINST THE ORDER/JUDGMENT IN OS 83/2008 of SUB COURT, CHENGANNUR DATED** **REVISION PETITIONER(S):** **----------------------** **P.R. DEVADAS, PRESIDENT,** **AKHILA KERALA VISHWA KARMA MAHA SABHA, REG. NO.38/19-4-1123, H.O. VANJIPPUZHA BENGLOW, MUNDANKAVU, CHENGANNUR.** **BY ADVS.SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA) SRI.A.R.EASWAR LAL** **RESPONDENT(S):** **--------------** ## **1. SUB DIVISIONAL MAGISTRATE, CHENGANNUR-689121.** **2. SUB DIVISIONAL POLICE OFFICER, CHENGANNUR-689121.** **3. SUB INSPECTOR OF POLICE, CHENGANNUR-689121.** **4. TAHSILDAR, CHENGANNUR-689121.** **5. VILLAGE OFFICER, CHENGANNUR-689121.** **6. M. SUKUMARAN ACHARI, NALUKETTIL VEEDU, PAUDIKKONAM P.O., MUKKIKKADA, TRIVANDRUM-695614.** **Crl.Rev.Pet.No. 1757 of 2016 ()** ## **--------------------------------** ## **7. K. VIJAYAN,** **ELANJIKKAL VEEDU, KANNAMNGALAM SOUTH, CHETTIKULANGARA P.O., MAVELIKKARA-690106.** **R1 TO R5 BY PUBLIC PROSECUTOR SRI. K.B. UDAYAKUMAR R6& R7 BY SRI.N.N.SUGUNAPALAN (SR. ADV.) BY ADV. SRI.S.SUJIN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **Crl.Rev.Pet.No. 1757 of 2016 ()** ## **--------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** ## **------------------------** - **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** **Crl.Rev.Pet.No. 1757 of 2016 () --------------------------------** |**A15**|**TRUE COPY OF THE MINUTES OF MEETING OF BOARD OF**| |---|---| ||**DIRECTORS OF K.V.K.S. DATED 24.7.2011**| |**A16**|**TRUE COPY OF THE MINUTES OF COUNCIL YOGAM OF**| ||**KERALA VISHWA KARMA SABHA DATED 1.9.2014**| |**A17**|**TRUE COPY OF THE MINUTES OF THE COUNCIL METING**| ||**OF KERALA VISHWA KARMA SABHA DATED 10.6.2015**| |**A18**|**TRUE COPY OF THE MINUTES OF THE MEETING OF**| ||**KERALA VISHWA KARMA SABHA AND ASSOCIATION DATED**| ||**24.7.2016**| |**A19**|**TRUE COPY OF THE RECEIPT DATED 29.5.2013 FOR**| ||**PAYMENT OF PROPERTY TAX ISSUED FROM CHENGANNUR**| ||**MUNICIPALITY**| |**A20**|**TRUE COPY OF THE ELECTRICITY BILL DATED**| ||**17.5.2014 ISSUED FROM ELECTRICITY OFFICE,**| ||**CHENGANNUR**| |**A21**|**TRUE COPY OF TH ELECTRICITY BILL ISSUED FROM**| ||**CHENGANNUR SECTION DATED 11.7.2015**| |**A22**|**TRUE COPY OF THE ELECTRICITY BILL DATED**| ||**11.3.2016 ISSUED FROM CHENGANNUR SECTION**| |**A23**|**TRUE COPY OF THE ELECTRICITY BILL OF HEAD**| ||**OFFICE DATED 14.5.2016**| |**A24**|**TRUE COPY OF THE ELECTRICITY BILL DATED**| ||**14.7.2016**| |**A25**|**TRUE COPY OF THE JUDGMENT IN WPC.**| ||**NOS.18648/2016 & 15365/2009 OF THE HON'BLE**| ||**COURT OF KERALA**| |**A26**|**TRUE COPY OF THE ORDER OF THIS HON'BLE COURT**| ||**DATED 30.6.2016**| |**A27**|**TRUE COPY OF THE ORDER NO.L2-20453/01 DATED**| ||**23.8.2016**| |**A28**|**TRUE COPY OF THE COMPLAINT DATED 1.9.2016 FILED**| ||**BEFORE THE SUB INSPECTOR OF POLICE, CHENGANNUR**| |**A29**|**TRUE COPY OF THE COMPLAINT DATED 3.9.2016**| **Crl.Rev.Pet.No. 1757 of 2016 () --------------------------------** |**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**| ## **Crl.Rev.Pet.No. 1757 of 2016 () -------------------------------** ## **RESPONDENT(S)' ANNEXURE -----------------------** |**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** **EL** ## **K.ABRAHAM MATHEW, J. ============================= Crl.R.P. No.1757 of 2016** ## **============================ Dated this the 25[th] day of August, 2017** ## **ORDER** Akhila Kerala Vishwa Karma Maha Sabha is a 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, _Crl.R.P. No.1757 of 2016_ _-2-_ 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 _Crl.R.P. No.1757 of 2016 -3-_ 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. 2. Heard the learned counsel for the petitioner and the learned Senior counsel appearing for respondents 6 and 7 and the learned Public Prosecutor. 3. 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 _Crl.R.P. No.1757 of 2016_ _-4-_ property and handed it over to the police. 4. Sections 145 and 146 Cr.P.C. should be read 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. 5. As mentioned earlier, the Magistrate not only _Crl.R.P. No.1757 of 2016_ _-5-_ 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 _Crl.R.P. No.1757 of 2016_ _-6-_ 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. 6. 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. 7. 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 _Crl.R.P. No.1757 of 2016 -7-_ 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. 8. 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. 9. 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. _Crl.R.P. No.1757 of 2016_ _-8-_ 10. 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 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 _Crl.R.P. No.1757 of 2016_ _-9-_ 6 and 7, handed over possession of the property to that group. 11. 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. 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. Sd/- **K.ABRAHAM MATHEW, JUDGE** VS