EMPEROR Vs. NARSINGDAS GANGADHAR

JUDGEMENT

(1.) 1. This is a reference by the Sessions Judge, Raipur, Under Section 438, Criminal Procedure Code, made on an application for revision against a preliminary order passed by the Sub-divisional Magistrate, Drug, Under Section 145. Criminal P.C. The Sessions Judge has written a long order, giving his reasons for the reference, but briefly the reasons are that the order was without jurisdiction, as there was nothing to show that there was likelihood of a breach of the peace, and secondly, that the preliminary order did not disclose the grounds on which a breach of the peace could be anticipated.

(2.) THE facts have been given at some lengh in the order of the , Sessions Judge, and it will be sufficient to state that the two parties consist of Narsingdas and his father Gangadhar on one side, who admittedly took a lease of the lac in the Ambagarh Chowki zamindari forest, and on the other the zamindar Lal Indrashah himself and the subsequent lessees to whom he had given a lease of the lac produce, after it was alleged, the lease in favour of the first party was forfeited. The lease in favour of Narsingdas was given in 1931 and was for six years i.e., until 1937. There was some condition in the lease of forfeiture in case of nonpayment of instalments of rent, and it was alleged that there was a default in payment last year. The zamindar had sent a telegram to Narsingdas on 31st May last, directing him to pay Rupees 14,666-10-8 on 1st June, and stating that otherwise action would be taken according to the conditions of the lease. On 3rd June a further telegram was sent, saying that the instalment was not paid in spite of notice and that the lease was cancelled and that the zamindar had taken possession. After this the zamindar gave a fresh lease to the other lessees. Narsingdas then made an application Under Section 145, Criminal P.C., in the Court of the Sub-divisional Magistrate on 20th June 1933 and the Magistrate sent the case to the police for a report. The report was not received until the 18th of July, on which a statement of the applicant was recorded and a further report was called for from the police. On the 19th of July a preliminary order was passed Under Section 145, Criminal P.C., and it is against this order that the application for revision was made to the Sessions Judge. There are two conditions necessary for the Magistrate to have jurisdiction Under Section 145, Criminal P.C.: the first is that there must be a dispute about land as defined in Clause (2) of the section; and secondly, there must be a likelihood of a breach of the peace. In the present case the dispute is admittedly about a lease of lac produce in the zamindari forest. The learned counsel who appeared on behalf of the zamindar party contended that such a lease was not immoveable property within the meaning of the section, and in support of his contention cited Ali Mohammad Mondal v. Fakiruddin Munshi AIR 1920 Cal 708. That case has been referred to by the Sessions Judge in his order and has been cited as A.I.R. 1920 Cal. 708; but the Sessions Judge has not accepted the view propounded therein. I would only add that I agree with the Sessions Judge and, with all due respect, I would differ from the view put forward in the Calcutta case. It is true that lac itself would not be immoveable property, but it can only be propagated on trees and is so connected with the trees that any dispute with regard to it must also involve a dispute with regard to land or right to enter upon that land for the purpose of taking the lac.

(3.) FOR these reasons I discharge the reference and maintain the preliminary order passed by the Sub-divisional Magistrate. The case will be returned to the Magistrate for disposal according to law.