MD RAHIM MOLLA Vs. ABBAD MUDI

JUDGEMENT

(1.) This revisional application under section 401 read with section 482 of the Code of Criminal Procedure (hereinafter called the Code), 1973 has been preferred by the petitioners assailing the order dated 22.09.03 passed by the learned Executive Magistrate, Barasat (Sadar), North 24-Parganas in Case No. M.P. 1387 (A)/2003 under sections 145/146 of the Code restraining both the parties i.e., the petitioners and the opposite parties from entering into the disputed land and directing the BL & LRO, Barasat-II to act as receiver under section 146 of the Code for the said disputed land.

(2.) The facts of the case as it emerges from the revisional application is that, the petitioners claim themselves to be bargadars under Kazi Mujibar Rahman, owner of the land paying regular share of produce to the land owner. The petitioners and some other bargadars being in apprehensions of breach of peace filed an application under section 144(2) of the Code on 16.09.03 when the learned Sub Divisional Executive Magistrate in Case No. M.P. 1366/03 gave direction to I.C., Barasat P.S. to see that barga right of the petitioners are not encroached and to maintain peace. Owner of the land subsequently filed a writ application being W.P. No. 14798(W) /2003 in this Court when Pranab Kumar Chattopadhyay - J directed Inspector-in-Charge, Barasat P.S. to see that no breach of peace takes place in and around the lands in question. It was made further clear that the said order will not authorise the police authorities to interfere with the rights of the recorded bargadars under any circumstances. On 16.11.03 petitioners received a letter and came to know that on 22.9.03 learned Executive Magistrate, Barasat in Case No. M.P. 1387(A)/03 has passed order directing that Rahim Molla and 11 others and Abbas Mudi and six others are restrained from entering into the said disputed lands in question and BL & LRO, Barasat-II is directed to act as receiver under section 146 of the Code. The order of the learned Executive Magistrate is illegal and the petitioners were not given any opportunity to lead evidence regarding possession of the land. Accordingly, the petitioners challenged the said order passed by the learned Executive Magistrate in this revisional application.

(3.) Learned advocate for the petitioners contended that successive proceedings under sections 144/145 of the Code are bad in law. When in W.P. No. 14798(W)/03 there was direction by this Court in the writ application not to interfere with the rights of the recorded bargadar, there was no ground for the learned Magistrate to pass an order regarding appointment of receiver on the said lands. The said order is absolutely bad in law as the learned Magistrate without passing any order of attachment passed order appointing receiver. Without passing any order of attachment no receiver can be appointed. The composite order starting a proceeding under section 145 of the Code and appointing receiver straight way without attachment of the land is illegal and bad in law. According the said order should be set aside.