BAGESHWARI DEVI Vs. INDIAN UNION

JUDGEMENT

(1.) This application is on behalf of 34 petitioners who have been convicted by a Magistrate, vested with first class powers of Gaya under Section 447, Penal Code, and sentenced to a fine of Rs. 200 each, in default, to undergo simple imprisonment for 1 month each. The order of conviction and sentence has been affirmed by the Additional Sessions Judge of Gaya, Mr. N. Ahmad.

(2.) The prosecution case is that the lands of village Kharanti, to which the petitioners belong, with the houses of the petitioners were acquired in connection with the construction of an aerodrome by Government sometime in the year 1942-43 and compensations were paid to_ the petitioners in respect of those acquisitions. The petitioners had evacuated the houses, and had gone and settled in a nearby locality. Subsequently there was an outbreak of fire, and houses of these petitioners, which they had constructed later after acquisition of their houses in the village, were burnt to ashes and destroyed by the fire in the year 1916. Thereafter, these petitioners took shelter in the verandah of structures which had been constructed by the military at the site of the village and, which, after the termination of the war, had been lying vacant. Subsequently, it is alleged that they started building houses on the old sites, and when the site was inspected by one T.S. Jotwani on 6th Match 1948, he noticed that the villagers generally re-occupied their old sites, and he submitted a report of this fact to the Collector for necessary action. The Collector then directed that an enquiry should be made by the land acquisition officer, and an enquiry was accordingly made and a report submitted to the Collector. This report is Ex. 6 in the case. It is alleged by the prosecution that as the petitioners failed to vacate the premises, they were liable to be prosecuted under Section 447, Penal Code. When the matter came before the Subdivisional Magistrate, he issued notice to the petitioners to show cause why they should not be prosecuted for trespass. On 11th June 1948, cause was shown by the petitioners. In that show-cause petition they alleged that they bad constructed their houses on the Government acquired lands with the permission and consent of the then land acquisition officer, Mr. Sanyal, after their houses had been destroyed by fire in the year 1946. They say in paras. 11 and 12 of their petition that they approached Mr. Sanyal for the return of lands as the war was over and the lands acquired by the Government were lying useless while the petitioners were in urgent need of the lands which Government had acquired from them, and that Mr. Sanyal, sympathising with their helpless condition, allowed them orally to erect their dwellings on the old sites of their houses and directed them to refund the compensation received by them minus 15 per cent, on receipt of notices, and gave assurance that he would get every thing done in communication with the Government. The petitioners further went on to say that on the oral order of Mr. Sanyal, the then land acquisition officer, they constructed their houses on the old sites, though the said sites had been acquired by the Government about a year ago. They further stated that they had submitted a long application before Mr. Sanyal for fixing the amount of compensation to be returned by them to Government, but on which application no action appears to have been taken. They accordingly prayed that they should not be prosecuted for trespass, and they further alleged that they had made a representation to the higher authorities including the military authorities for consideration of this question of settlement of the lands with them. On this cause being shown before the learned Subdivisional Magistrate, the learned Magistrate observed, as it appears from the order-sheet dated 11th June 1948, that

(3.) In support of this petition, three points have been urged by learned counsel for the petitioners. The first contention is that there is nothing to show that there was any criminal intent on the part of the petitioners, and, therefore, there has been no offence committed under Section 447, Penal Code. The second contention is that there should have been no order for restoration of the possession passed by the learned Magistrate under Section 522, Criminal P. C., as the said section had no application to the facts of the case and the third point raised is that there should not have been a joint trial of all the petitioners as there was no community or identity of purpose.