KARTICK CHANDRA SINGHA Vs. SAMBHU PADA SINGHA

JUDGEMENT

(1.) The petitioner at whose instance a proceeding under Sec. 145 of the Crimial P.C. was drawn up by the Sub-Divisional Executive Magistrate, Uluberia, has obtained this rule in revision challenging a subsequent order of the Magistrate in the said proceeding dated 18.5.76 appointing a Receiver for the year 1383 B.S.'for taking steps for cultivation of the land in dispute'. The petitioner challenges that he is in cultivation of the plots in dispute which are agricultural lands as a bargadar by the order dated 18.3.76 of the Revenue Officer, Shyampur Settlement Circle. That order has been annexed with the petition. On the application of the opposite party in the proceeding the said receiver has been appointed for cultivation of the land. The said order is impugned in this rule as without jurisdiction and in excess of the power conferred upon the Magistrate under Sec. 145 subsection (8) of the Crimial P.C. The learned Magistrate has also restrained both parties from going upon the land.

(2.) The rule was opposed. The order sheet of the Magistrate discloses that on an application by the petitioner first party a proceeding under Sec. 44 of the Code was started which was subsequently converted into one under Sec. 145 of the Code and the legality of the proceeding so drawn up cannot be challenged. There is a dispute over the land and apprehension of breach of the peace exists. The Magistrate has therefore, jurisdiction to draw up a proceeding under Sec. 145 Cr. P. C. The Magistrate has also by successive order, restrained both the parties from going upon the land in dispute 3rd had also appointed a receiver for harvesting the crop. Such harvesting has been done and the receiver had submitted accounts for the same to which the parties has raised certain objections. Thereafter, on 18.5.76 the impugned order was made by the Magistrate by which he appointed a receiver for the year 1383 B.S. for cultivation of the land in dispute. This order is rightly challenged as in excess of the power conferred upon the Magistrate in Sec. 145(8) of the Code. The Magistrate is entitled under the above sub-section to make an order for custody or sale of any crop or other produce of the land in dispute and he is also entitled only upon completion of the enquiry to make an order for disposal of the said property or sale proceeds thereof. In a proceeding under Sec. 145 Crimial P.C. the Magistrate has no power under sub-section 8 to appoint a receiver in respect of the property in dispute and such receiver cannot function for the purpose of cultivation of the land. A receiver cannot take steps for cultivation of the land or be ordered by the Magistrate to do so without being appointed receiver of the property itself. This, the Magistrate is empowered to do only when he proceeds under Sec. 146 of the Crimial P.C. The Magistrate cannot, however, proceed under Sec. 146 Cr.P.C unless the preconditions under that section are fulfilled i.e. (1) If the Magistrate at any time after making the order in sub-s, (1) of Sec. 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred in Sec. 145 or if he is unable to satisfy himself as to which of them was then in such possession he may attach the subject of dispute and when the Magistrate so attaches the subject of dispute he may make such arrangement as he considers proper for looking after the property or if he thinks fit appoint a receiver thereof. None of those contingencies can be found to exist for exercise of power under Sec. 146 Crimial P.C. The Magistrate does not in his order state that he has considered the case to be one of emergency and as such he cannot exercise his power under Sec. 146 sub-section (1) to appoint a receiver in respect of the land. That power can, however, be exercised by the Magistrate in this proceeding after making an order in sub-section (1) of Sec. 145 Crimial P.C. as has been done only in a case which he considers it one of emergency and only after attachment of the property. That is not the case. The order of the learned Magistrate appointing a receiver in this case can therefore be successfully impugned as not in accordance with law. The order so impugned is therefore, liable to be quashed and the learned Magistrate should be directed to proceed in terms of Sec. 145 sub-section (4) to decide whether any, and which of the party was at the date of the order made by him under sub-section (1) in possession of the subject of dispute. A proceeding under Sec. 145 Crimial P.C. is required to be disposed of expeditiously as both the parties have been restrained by the order of the Magistrate from coming upon the land, though the land has not been attached.

(3.) A point has arisen for our consideration in this connection whether a reference under Sec. 21 sub-section (3) under the West Bengal Land Reforms Act, 1955 can be made by a Magistrate in a proceeding under Sec. 145 Crimial P.C. Sec. 21 sub-section (3) is in the following terms :