ZILA PARISHAD Vs. K C SAXENA

JUDGEMENT

(1.) THESE two revisions are directed against the same order dated 127-1977 of the Sessions Judge, Etawah allowing Cr. Revision No. 38 of 1977 and setting aside the order dated 23-6-1977 passed by the Addl. District Magistrate, Etawah Under Section 144, Cr. P. C. The Zila Parishad is represented by Sri N. S. Chaudhary, Sri K. C. Saxena is represented by Sri Virendra Saran while Raj Bahadur who was allowed to be impleaded subsequently in both these cases is represented by Sri Birendra Dikshit and Sri H. N. Misra. The order Under Section 144, Cr. P. C. prohibited persons other than the Zila Parishad from holding the cattle market in Baipura and Rajmau area within a radius of four kilo-metres from that area for a period of two months. The Magistrate was satisfied that there was apprehension of breach of the peace and so he passed the prohibitive order. Kailash Chand Saxena alone had filed a revision before learned Sessions Judge. He was interested in holding the cattle market in Rajmau on the land which is claimed to be his bhumidhari land- Raj Bahadur was the other person interested in holding the cattle market in village Baipura on the land which he claimed to be his bhumidhari land and abadi land. The case of the Zila Parishad was that the land on which the market was held in Baipura vested in the State after coming into force of the U. P. Zamindari Abolition and Land Reforms Act and the management of the same was given to the Zila Parishad. For this purpose on behalf of the Zila Parishad reliance was placed on the cases of State v. Smt Ram Sri and Maharaj Singh v. State of U. P. That case was between the same parties which went upto the Supreme Court. Learned Counsel for Raj Bahadur, however, asserts that that case was not in respect of the entire land on which the market was held and was only in respect of a portion of the land on which the cattle market was held.

(2.) WITH regard to the cattle market of Rajmau, the case of the Zila Parishad was that the Zila Parish ad alone had a right to hold the market there. On behalf of the Zila Parishad reliance was placed on a judgment of this Court in Civil Misc. Writ No. 9310 of 1975 (All) which was between the same parties. It appears that that writ petition was filed by Kailash Chand Saxena and was ultimately dismissed as having become infructuous as the order Under Section 144, Criminal P. C. which had been promulgated earlier, had exhausted itself. Learned Counsel for Kailash Chand Saxena, however, states that that was in respect of a different plot which was claimed to be its own land by the Zila Parishad, Learned Counsel for the Zila Parishad on the other hand, states bhat it was in respect of the same cattle market at Rajmau. It may also be stated here that before the Sessions Judge, the Zila Pari-Shad was not a party but it had applied to be impleaded as a party. The learned Sessions Judge did not allow it to be impleaded as a party but allowed the Zila Parishad to be heard and to oppose the revision. It was for this reason that an argument was advanced before me that the Zila Parashad had no right to file any revision as it was not a party. The fact remains that the Zila Parishad was very much an interested party. It was even heard and allowed to oppose the revision by the learned Sessions Judge. I am unable to appreciate as to why it was not actually allowed to be impleaded. In any view of the matter another revision had been filed by the State and as such the entire controversy is before me. Learned Counsel for Zila Parishad wanted me to see the affidavits filed in the Writ Petition No. 9310 of 1975 in order to show that twenty years contract was given to Kailash Chand Saxena in 1952 by the Zila Parishad for holding the cattle market in village Rajmau and that contract was again renewed for twenty years in 1972 but on account of certain default made by Kailash Chand Saxena, that contract was revoked. Learned Counsel for Kailash Chand Saxena opposed this prayer and argued that in this revision it will not be proper for this Court to look into the papers of Writ No. 9310 of 1975 as he claims that the identity of the plots which were in dispute in that writ petition, was not established and it cannot be said that they were the same plots which are in dispute in the present proceedings, in Rajmau. The grievance of the Zila Parishad is that the learned Sessions Judge had decided the case as if he was deciding the civil dispute and has given findings prejudicial to the Zila Parishad without looking into the papers of Writ No. 9310 of 1975 and without even stating the decision in the case between Raj Bahadur and Zila Pari-shad in respect of Baipura Cattle Market as reported in AIR 1976 All 121 and AIR 1976 SC 2602 (supra ). I have, however, arrived at the conclusion that it is not possible to pass any effective order in these revisions at this stage as the order passed Under Section 144, Cr. p. C. has exhausted itself and both the revisions have become infructuous. It is, therefore, not necessary for me to consider the merits of the respective claims of both the parties. It is made clear that it will not be deemed that I have agreed with the view taken by the learned Sessions Judge on merits as I am not entering into the merits of the respective claims.

(3.) LEARNED Deputy Govt. Advocate desired that even though the revisions have become infructuous as the order Under Section 144, Cr. p. C. has exhausted itself, yet it is proper that this Court should finally decide whether the learned Sessions Judge had power to interfere in such a revision against the order Under Section 144, Cr. p. C. It is a question of general importance and as such a decision was sought on this point. For this proposition, he has placed reliance on the case of Hrushikesh Acharya v. Balaram Pati and some other cases, I have, therefore, heard him on this point. His contention is that prior to the coming into force of the Cr. P. C. ,1973 and after 1973 (sic) (before 1-4-1974 ?), it was, no doubt, possible for the High Court to interfere in revision against an order Under Section 144, Cr. P. C. but after the 1st of April, 1974, no revision lay against an order Under Section 144, Cr. P. C. which is purely of executive nature. In all fairness, Sri Malviya, the Deputy Govt. Advocate himself cited the case of Madhu Limaye v. S. D. M. Monghyr in which it was held that under the old Criminal P. C. a revision would lie against an order Under Section 144, Cr. P. C. That was the ground for holding that the provisions Under Section 144, Cr. p. C. were not hit by the Constitution and the restrictions were reasonable. While dealing with the provisions of Section 144, Cr. P. C. their Lordships of the Supreme Court have made the following observation : (at p. 2496 of AIR) It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. At another stage their Lordships also observed: