1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.678 OF 2009. Taj Muhammad S/o Sagu Patel ... Petitioner. Versus The State of Maharashtra and others ... Respondents. ... Mr.S.S. Kazi, advocate for the petitioner. Mr.K.S. Patil, A.P.P. for the Respondent Nos.1 to 4. Mr.S.D.Hiwarekar, advocate for the Respondent Nos.5 to 13. ... CORAM : V.R.KINGAONKAR,J. Date : 24.08.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner challenges order dated 7.7.2009, rendered by learned Sub-Divisional Officer, Vaijapur, in 2 proceedings No.1616/2009 U/s 145 of the Cr.P.C., whereby Tahsildar was appointed as Receiver to take over possession of land bearing Gat No.246 situated at village Kanakshil, Tq. Khultabad. 3. The land bearing Gat No.246 situated at village Kanakshil, is an inam land. The petitioner claims to be Mutwalli of a Mosque situated in the said land. The land is granted for services to be rendered to the Mosque. According to the petitioner, he is rendering services to the said Mosque. He was served with a notice by the Sub-Divisional Officer (Atiyat), calling upon him to explain why the land Gat No. 246 be not taken under Government supervision. It was alleged that the Mosque was not being properly maintained and the petitioner was not properly looking after the services to be rendered to the Mosque. He explained the show cause notice. He apprehended dispossession under the garb of Atiyat Inquiry and, therefore, filed a Writ Petition in this Court. In his Writ Petition (W.P.No.5621/2008) ad-interim relief was granted in his favour. The Respondent No.3 Sub- 3 Divisional Officer thereafter issued notice to his sons and grand sons calling upon them as to why proceedings U/s 145 of the Cr.P.C. be not initiated. They were referred to as Party No.I in the said notice. Before his sons and grand sons would submit their reply, the Respondent No.3 rendered the impugned order dated 7.7.2009 and directed the Tahsildar to take over possession of the land in question. Consequently, he challenges the order in question on various grounds including the ground that the action taken by the Respondent No.3 is malafide and that without giving him any notice, the proceedings U/s 145 of the Cr.P.C. could not have been initiated. 4. Heard learned counsel for the parties and learned A.P.P. 5. A plain reading of Section 145 of the Cr.P.C. would make it amply clear that the Executive Magistrate is required to indicate his satisfaction that a dispute is likely to cause breach of peace concerning the land in question. 4 Sub-clause (1) of Section 145 of the Cr.P.C. reads as follows : "S.145. (1) Whenever an Executive Magistrate is satisfied from a report of 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." It is amply clear that as a first measure the Executive Magistrate is required to pass preliminary order requiring the parties concerned in the relevant dispute to attend his Court. The 5 expression "parties concerned" as used in sub- clause (1) of Section 145 of the Cr.P.C. would show that all the persons claiming to be in possession at the time of the initial order are required to be served with the notice. The expression "parties concerned in such dispute" does imply not only those parties who indulge in the dispute but also all the persons who may be concerned with the land in question. It is obvious that the petitioner is the party concerned in the relevant dispute being the person who claims to be the Mutwalli of the Mosque for services of which the land bearing Gat No.246 has been granted. It is significant to notice that he was served with notice of the earlier proceedings in the Atiyat Inquiry. He has placed on record the copy of the summons served on him by the Tahsildar in such proceedings. The subject of the previous proceedings about which summons dated 20.8.2008 was served on him reads as follows : "Subject : Regarding taking of Service Inam Land bearing Gut No.246 situated at village Kanakshil in Government 6 possession." The petitioner has placed on record copy of his prayers of his Writ Petition (Exh.E). A Division Bench of this Court granted ad-interim relief in terms of prayer clause (D) in the Writ Petition filed by the petitioner, whereby the notices issued to him have been stayed. Needless to say, the Respondent No.3 was well aware of the fact that the petitioner is the party concerned with the disputed land. Inspite of such prior knowledge, it transpires that no notice was issued to the petitioner in the proceedings initiated U/s 145 of the Cr.P.C. The impugned order (Exh.H) reveals that the names of sons and grand sons of the petitioner were shown as members of Party No.I. It has been mentioned in the impugned order that they were Inamdars and their "Virasat" (successions) was not granted. This is factually incorrect statement. The petitioner is still alive though his age is shown to be 102 and he may not be actually able to personally cultivate the land in question. However, during his life time, there is no question of granting of Succession Certificate in 7 favour of the sons and grand sons who are referred to as Party No.I in the impugned order. The Respondent No.3 ought to have given personal notice to the petitioner. The Respondent Nos.5 to 13 are shown as members of Party No.I. It is shown that they are members of Muslim community in the village. The impugned order reveals that due to registration of crimes against each other and the earlier incident of mutual fight, there was material available to infer that there would be breach of peace. In the present case, though there may be some dispute between the Respondent Nos.5 to 13 on one hand and the sons and grand sons of the petitioner on the other hand, yet, the proceedings could not have been initiated without serving a due notice on the petitioner. Needless to say, the impugned order is rendered without giving any opportunity to the petitioner. In this view of the matter, the grievance of the petitioner that the impugned order is rendered against the norms of the principles of natural justice is quite proper. 6. Considering the above material 8 deficiency appearing from the record, I am inclined to hold that the impugned order is illegal and rendered without giving opportunity of hearing to the petitioner. On this short ground, the impugned order is quashed. It is, however, made clear that the Respondent No.3, if is duly satisfied may initiate afresh proceedings and may proceed after giving due opportunity to the petitioner. The land may be restored to the possession of the person from whom the possession was taken by the Tahsildar. (V.R.KINGAONKAR,J.) asp/office/Crwp67809