TARAK CHANDRA PAIK Vs. NAIM MONDAL

JUDGEMENT

(1.) THIS Rule was obtained against the orders passed by the learned Executive Magistrate, Basirhat, in a proceeding under Section 144 of the Code of Criminal Procedure which was subsequently converted into one under Section 145 of the same Code. It appears that on the application of the opposite party the learned Executive Magistrate :by his order dated November 18, 1974 drew up a. proceeding under Section 144 of the Code of Criminal Procedure against the second party petitioners restraining them from cutting away the paddy from the lands in schedule. The second party petitioners appeared before the learned Magistrate and prayed for vacating the aforesaid order but the learned Magistrate by his order dated January 16, 1975 converted the proceeding under Section 145 of the Code of Criminal Procedure and restrained both the parties from entering into the disputed lands. The lands were also attached and Junior Land Reforms Officer, Habra was appointed Receiver in respect of it until further orders. It is as against such orders as passed by the learned Magistrate the present Rule was obtained.

(2.) MR , Panda with Mr. Roy, learned Advocates appearing for the petitioners submitted that the learned Magistrate was wholly unjustified not only in ini - tiating the proceeding under Section 144 about also converting it into one under Section 145 of the Code of Criminal Procedure. Mr. Panda submitted that long before filing of the aforesaid application by the principal opposite party the petitioners filed a Title Suit being Title Suit No. 551 of 1973 in the Second Court of Munsif at Basirhat for permanent injunction restraining the principal opposite party from disturbing their possession in the self same lands and that the learned Munsif by his order dated December 21, 1973 granted an interim order of injunction restraining the opposite party from disturbing the petitioners' possession in the disputed lands. Mr, Panda also pointed out that the principal opposite party No. 1 filed an application before the Junior Land Reforms Officer even though he was not competent authority for recording his and his brothers' names as bargadars under the petitioners and the Junior Land Reforms Officer by his order dated December 7, 1973 recorded them as bargadars and as against such order the petitioner moved this Court and a Rule was issued on February 12, 1974 and this Court granted an injunction restraining opposite party and his brothers from interfering with the possession of the petitioner on the basis of the orders of the Junior Land Reforms Officer. The principal opposite party No. 1 and his brother filed an application for vacating such order of injunction but it was rejected by this Court on July 22, 1974. The main Rule is now pending. Mr. Panda submitted that by suppression of such facts the opposite party No. 1 made the aforesaid application under Section 144 before the Sub -Divisional Executive Magistrate, Basirhat. In this connection Mr. Panda also submitted on the basis of a decision in the case of Adhir Chandra reported in (1962) 66 Cal WN 947 whether a person was a bargedar or not was beyond the jurisdiction of learned Executive Magistrate and that it was only the competent authority under Section 18 of the Land Reforms Act who had jurisdiction to decide the question whether a person is bargadar or not. Mr. Panda also submitted that under Section 21(3) as amended of the Land Reforms Act, if there is any question as to whether a person is a bargadar or not in any proceeding before either civil or criminal court such question has to be referred to the competent authority who alone had exclusive jurisdiction to decide the question. Accordingly Mr. Panda's contention was that the entire proceeding should be quashed.

(3.) HAYING heard the learned Advocates of the respective parties and on and consideration of the materials 1 see much force in the contention of Mr. Basu. It is true that the petitioners had obtained an ex parte order of injunction against the opposite party and his brothers who are claiming to be bargadars in respect of the disputed lands. But the opposite party has applied for vacating the aforesaid ex parte order of injunction and the matter is still pending. It has also been pointed out how prior to the filing of the suit the principal opposite party and his brothers had their names recorded as bargadars in an application filed under the West Bengal Land Reforms Act, Indeed the petitioners have moved this Court against such order (but that matter is also pending. In such circumstances I do not think that the learned Executive Magistrate erred in converting the proceeding under Section 145 of the Code of Criminal Procedure and in restraining both the parties from entering into the disputed lands. I see no reason to interfere with the order of the learned Magistrate at the present stage.