MOSAFIR YADAV Vs. MAHANTH CHANDRA SHAKHAR GIRI

JUDGEMENT

(1.) This is an application under section 482 and 483 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) by thirty petitioners for quashing a proceeding under section 145 of the Code. The lands in dispute in the proceeding were attached by the learned Magistrate in terms of section 146 of the Code by order, dated 23-12-1975. The petitioners were members of the third party to the proceeding and claimed to be Bataidars of the exproprietor since long. Opposite party no. 1 claimed to be in possession of some of the lands in dispute as owner impersonal cultivation, Opposite-party nos. 2 to 25 claimed to be in possession of some of the land in dispute as Bataidars of opposite party No. 1.

(2.) The point urged on behalf of the petitioners in support of the rule issued by this court is that the proceeding under section 145 of the Code not maintainable by virtue of the provisions contained in section 48E(13) of the Bihar Tenancy Act, 1885 hereinafter referred to as the Act, learned counsel for the petitioners placed reliance upon the case of Jai Prakash Rai and another v. Bans Lal and others, (1977 Bihar Bar Council Journal 626), where it was held that during the pendency of the proceeding under section 48-E of the Act a proceeding under section 145 of the Code is not maintainable. The position in law in regard to non-maintainability of the proceeding under section 145 of the Code pending adjudication before a Bataidar Board (hereinafter referred to as the Board) constituted under section 48-E of the Act is not disputed. It is, however, contended on behalf of the opposite party that no proceeding under section 48-E of the Act is pending and, therefore, the proceeding under section 145 of Code is well maintainable. It was submitted by Mr. Jagdish Pandey that petitioner no. 1, Mosafir Yadav was party to a writ application which was subject-matter of Civil Writ Jurisdiction Case No. 508 of 1972 in which the constitutibn of the Board under section 48E of the Act was challenged. This court allowed the writ application quashed the jurisdiction of the writ. It was, therefore, submitted on behalf of the opposite party that it was obvious that on Bataidari dispute was pending before a Board constituted under section 48E of the Act. Learned counsel for the petitioners conceded that the application of Musafir Yadav and others, who were petitioners in C.W.J.C. No. 508 of 1972 must be dismissed, as there was no proceeding pending before the Board. In regard to other petitioners, however, learned counsel for the petitioners submitted that the Board was in sessin of the matter and, therefore, the present proceeding under section 145 of the Code was not maintainable.

(3.) At the time of hearing of this application by order dated 16-11-1977 a report Was called from the land Reforms Deputy Collector, Jehanabad, Oaya as to whether the Bataidari dispute between the petitioners and Mahanth Chandra Shekhar Giri, opposite party no. 1 had been referred to a Bataidari Board for adjudication or not. Report dated 2-12-1977 has been received from the Land Reforms Deputy Collector, Jehanabad, Gaya. The report shows that notices have been issued under section 48E of the Act or persons claiming to be Bataidars over the lands to dispute. The report contains a list of petitioners to this application. It is therefore, obvious that the Bataidari dispute between Mahanth Chandra Shekhar Giri and some of the petitioners is still pending adjudicarion before a Board. That being the position the present proceeding under section 145 of the Code is without jurisdiction and it is barred by the provisions of section 48-E(13) of the Act.