JAI PRAKASH RAI Vs. BANS LAL

JUDGEMENT

(1.) This is an application for quashing a proceeding initiated under Section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Code') by the Sub-divisional Magistrate, Sikarhna. The petitioners are the members of the first party in the said proceedings. According to the petitioners, the proceeding in question could not have been initiated, in view of the fact that on the relevant date a proceeding under Section 48E of Bihar Tenancy Act, 1885, VIII of 1885 (hereinafter referred to as 'the Act') was pending. As such, the precise question which is to be answered is as to whether during the pendency of a bataidari case under Section 48E of the Act a proceeding under Section 145 of the Code can be drawn up and decided by the Magistrate having jurisdiction over the land in question. The matter was heard by a Bench of this Court. Presided over by Mr. Justice C.N. Tiwary and Mr. Justice Uday Sinha. According to Mr. Justice C.N. Tiwary, no proceeding under Section 145 of the Code can be initiated white a dispute under Section 48E of the Act is pending before the appropriate authorities. On the other hand, Mr. Justice Uday Sinha was of the view that there is nothing under Section 48E of the Act which bars the jurisdiction of a Magistrate to initiate a proceeding under Section 145 of the Code and to decide the same in order to maintain peace in the locality. There being difference of opinion between the two learned Judges of this Court, the matter has been placed before me.

(2.) The facts of the case has been mentioned in the two judgments and for my purposes it is suffice to say that on 6.11.1972. members of the opposite party filed petitions in accordance with section 48-E of the Act alleging that they were bataidars in respect of different blocks of land, the total area whereof was 28 bighas 17 kathas 9 dhurs and they were likely to be dispossessed by the petitioners who were the landlords of the land in question. On the basis of the petition filed on behalf of the opposite party, bataidari cases, perhaps, six in number, were registered and notices were issued to the petitioners on 11.11.1972. In the 'meantime, the local Sarpanch made a report to the learned apprehension of breach of peace in respect of the aforesaid 28 bighas 17 kathas 8 dhurs of land and on the basis thereof, on 23.11.1972, a proceeding under Section 144 of the Code was initiated, This was converted into a proceeding under Section 145 of the Code on 15.1.1973 and the lands were ordered to be attached in exercise of the powers conferred by the Proviso to Sub-section (4) of Section 145 of the Code. This very order is the subject-matter of controversy in the present application. In the order dated 15.1.1973, learned Sub-divisional Magistrate has mentioned that a bataidari case in respect of the lands in question was pending in the court of the Deputy Colleotor, Land Reforms between the same parties. From this it is apparent that he was quite conscious about the pendency of a bataidari case under the provision of Section 48E of the Act. Now the question is as to whether under the aforesaid circumstances, the order for drawing up a proceeding under Section 145 of the Code and passing an order of attachment in accordance with the said section was legal and valid.

(3.) Section 48E in its present form was introduced by the Bihar Act, VIII of 1970. It provides a procedure for prevention of threatened ejectment of under-raiyat and restoration to possession of an under-raiyat unlawfully ejected. Sub-section (1) prescribes that if an under-raiyat is threatened with unlawful ejectment from any portion of the land by his landlord or "if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them or otherwise" the Collector, on his own motion or on an application made in this behalf, may initiate a proceeding for settlement of the said dispute or for preventing the landlord from ejecting the under-raiyat or for restoration to possession of the under-raiyat unlawfully ejected. After initiation of the proceeding, the Collector has to refer the dispute to a Board to be appointed by him. The Board has to make an enquiry after receiving evidence as it consider necessary and then to record a finding on the dispute which is to be transmitted to the Collector, who has to dispose of the proceeding in accordance with the terms of the findings. Under Sub-section (8) of Section 48-E, it is open to the Collector to disagree with the report of the finding, but then he has to record his reasons after giving the parties a responsible opportunity of being heard. Sub-section (8)(i), (ii) and (iii) vests power in the Collector to pass three types of orders under three contingencies. He may direct the landlord not to interfere with the possession of the under-raiyat in oases of threatened ejectment; he may declare the under-raiyat to be in possession of the land in question or crop or produce thereof; and in case of unlawful dispossession, he may restore the under-raiyat to possession of the land in question. Sub-section (11) of Section 48-E empowers the Collector to file a complaint against a person who fails to carry out the order made under Sub-section (8) and such person is liable to be punished and a sentence of imprisonment has also been provided, Sub-sections (4) and (5) of Section 48-E of the Act, which are relevant, are as follows: