ANNAKUTTY Vs. MATHAI SCARIA

JUDGEMENT

(1.) This petition is filed by B-party No. 1 in M. C. No. 36 of 1973 on the file of the Executive First Class Magistrate, Palai, for quashing the proceedings therein initiated under S.145 of the Code of Criminal Procedure, on the ground that the petitioner, who is a tenant entitled to fixity of tenure, has filed a petition under S.72B of the Kerala Land Reforms Act before the Land Tribunal, Kaduthuruthy, for the purchase of Jenm right, that the same is pending and that therefore the proceedings initiated against the petitioner in M. C. No. 36 of 1973 and the preliminary order passed therein are in violation of the mandatory provisions in S.29(A) of the Act and without jurisdiction.

(2.) The only question that falls for determination in this petition is whether it is necessary for a party to make out a prima facie case, in order to claim the benefit of bar of proceedings under Chap.12 of the Code of Criminal Procedure, 1898, provided for in sub-s.(1) of S.29A of the Kerala Land Reforms Act, 1963 (for short the Act), While Sri P. C. Chacko, learned advocate appearing for the petitioner, relied on a decision of this Court in Koshy Koshy v. State of Kerala ( 1975 KLT 432 ) in support of the petition, Sri K. T. Thomas learned advocate appearing for the respondents, contended that the decision cited has no application to the facts of the case, that from the wording of S.29A it is clear that, unless and until the party who seeks the benefit of this section makes out a prima facie case and satisfies the magistrate that the land in dispute is one which has been cultivated by him, the bar of proceedings under Chap.12 of the Code of Criminal Procedure, contained in S.29A of the Act cannot be invoked. On a careful reading of sub-s.(1) of S.29A of the Act, it can be seen that this contention has no real merit or substance. It was also argued that this aspect was not considered in the decision cited above. Under sub-s.(1) of S.72B of the Act, a cultivating tenant of any holding or part of a holding is entitled to assignment of the Jenm right subject to the restrictions in the proviso to that section. S.29A of the Act clearly lays down that where a person claiming to be a tenant applies for the preparation of a record of rights or for the determination of the fair rent or for the purchase of the right, title and interest of the landowner and the intermediaries, if any, in respect of the land cultivated by him, then, notwithstanding anything contained in any other law, no Magistrate shall have jurisdiction under Chap.12 of the Code of Criminal Procedure, 1898, in respect of a dispute between that person and any other person claiming to be in possession of that land, relating to that land, pending disposal of the application. I have already printed out that under S.72B, it is to a cultivating tenant that the right to apply for assignment of Jenm right has been given. Under S.29A, the pendency of an application for purchase of the Jenm right of the landlord by a person claiming to be a tenant in respect of the land cultivated by him will be a bar to the jurisdiction of a magistrate to initiate action under Chap.12 of the Code of Criminal Procedure, 1898 in respect of a dispute relating to the land between that person and any other person claiming to be in possession of that land. It is alleged in the petition that the petitioner and her minor children are having leasehold right in respect of the property in dispute and that they have filed O.A. No. 19/73 before the Land Tribunal for purchase of Jenm right and the same is pending consideration before the Land Tribunal. No counter affidavit has been filed by the respondents. The pendency of O.A. No. 19 of 1973 filed by the petitioner for purchase of Jenm right of the property which is the subject matter of this case, is not disputed. There is nothing in S.29A to indicate that, before invoking the bar under this section, the party who seeks the benefit of this section must satisfy the Magistrate, who has taken action under Chap.12, by making out a prima facie case that the party is a cultivating tenant of the land in question or that it is not enough if the party proves the pendency of an application before the Land Tribunal for purchase of Jenm right. It is clear from the wording of the section that the mere pendency of an application by a person, claiming to be a tenant in respect of a land cultivated by him, for purchase of Jenm right or for preparation of a record of rights or for determination of the fair rent, constitutes a bar of proceedings under Chap.12 of the Code of Criminal Procedure, 1898 in respect of cases specifically adverted to therein This sub-section as a whole, has been considered by this Court in the aforesaid decision and it has been held: