BIJOYANAND SINGH Vs. DOMA DUSADH

JUDGEMENT

(1.) These four applications arise out of proceedings which were initiated by the Sub-divisional Magistrate under Section 145, Criminal P.C. The proceedings commenced as long as 28 July 1947, on the basis of a police report suggesting action under Section 144, Criminal P.C., against both parties to an alleged dispute regarding land. On 1 August 1947, the Magistrate converted the proceeding into one under Section 145. On 6 November 1947, the second party to the dispute asked that the matter be referred to an arbitration board under the Bihar Bakasht Dispute Settlement Act, 1947, and the Sub-divisional Magistrate, on this petition, directed that a reference be made to the District Magistrate and the case be put up again on 17 of December 1947. That is the last order in the order sheet and, apparently, nothing has been done in the proceeding since then. The present applicatian to this Court is by the first party to that dispute, praying that the Sub- divisional Magistrate be directed to proceed with the determination of the dispute. It has been held again and again by this Court that when a proceeding is initiated under Section 145 it must be carried through to its conclusion unless either party to the dispute is able to convince the Magistrate that there is no dispute or that the dispute has ceased to exist. In such a case the Magistrate is authorised by Sub-section (5) of Section 145 to cancel his order and stay the proceeding. In the present case there was no question of either party convincing the Magistrate or trying to convince him that there is no dispute or that the dispute has ceased to exist. The Magistrate, therefore, was bound to continue the enquiry and to determine which party was in possession. It was contended by the opposite party, however, that the Sub-divisional Magistrate having referred the matter to the District Magistrate, and the District Magistrate on that reference having purported to constitute a board of arbitrators and refer the dispute to that board by an order dated 23 December 1947, the Sub-divisional Magistrate has no jurisdiction to proceed with the enquiry into the dispute under Section 145. For this contention reliance is placed on Section 6, Bihar Bakasht Disputes Settlement Act, 1947. That section declares that where a dispute is referred to a board "under this Act," then, not-withstanding anything contained in any other law, any proceeding under Section 145, Criminal P.C., pending in regard to the whole or part of the subject- matter of the dispute shall be discontinued. It may be conceded that, if in the present instance the dispute had been referred to a board "under the Act," the effect of the reference would have been to attract the provisions of this section so as to necessitate stay of the proceeding under Section 145; Criminal P.C. What has to be investigated, therefore, is whether the dispute has been referred to the board under the Act." The manner of referring a dispute to an arbitration board under the Act is prescribed by Section 3 of the Act, which is as follows: If in the opinion of the Provincial Government it is necessary or expedient so to do for the maintenance of peace or public order or for any other sufficient reason, the Provincial Government may, by notification, refer any dispute...to a Board to be appointed by the Provincial Government, in this behalf.... Section 14 of the Act empowers a Provincial Government, by notification, to delegate the powers vested in it by Section 3 to any officer not below the rank of District Magistrate subordinate to Provincial Government. Although we have not" been shown a notification by the Provincial Government delegating its power under Section 3 to the District Magistrate in this case, it may be assumed that such a notification has in fact been published. That, however, is not sufficient for the purpose of the Act. Section 3 requires in the case of each dispute that the Provincial Government shall issue a notification referring the, dispute to the board of arbitrators. Where the powers of the Provincial Government are exercised by the District Magistrate by virtue of a notification delegating the Government's powers to him under Section 14, a notification under Section S referring the dispute to the arbitrators must be issued by the District Magistrate. No such notification has been proved in the present case and the petitioners denied that any such notification was issued. An opportunity was given to the advocate of the opposite party to produce the Gazette containing the notification, if any. He has been unable to do so, although he has searched the Gazette. It was argued by him, however, that the word "notification" in Section 3 merely mean a notice, and he has referred to a document purporting to be a notification by the District Magistrate which was served on the present petitioners. That, however, is not sufficient. The word" notification" has been defined in the Bihar General Clauses Act, and in Section 4, Sub-section (36), "notification" means a notification in the Gazette. The foundation of the power of the Provincial Government under Section 3, or of the District Magistrate under; Section 14, is the publication of a notification in the Gazette, and until such a notification is published, a reference to a board of arbitrators, although purporting to be under the Act, is not in law under the Act so as to attract the provisions off Section 6.

(2.) It was next contended that this Court is precluded from holding that the board of arbitrators in this case was not properly constituted, or that it had no power to hear the dispute, by reason of the provisions of Section 5 of the Act. That section is as follows: No order of the Provincial Government appointing a Board or any person as chairman or member of a Board shall be called in question in any manner.

(3.) It will be observed that this section applies only to an order of the Provincial Government and does not even purport to apply to an order made by a District Magistrate by virtue of the power delegated to him by the Provincial Government. Secondly, the section only provides that in the case of an order of the Provincial Government appointing a board or any chairman or member of the board that order shall not be called in question in any manner. It does not affect the provisions of Section 6 which operate to stay of proceedings under Section 145 only when a dispute is referred to a board under the Act. Unless the dispute is referred under the Act, Section 5 does not and cannot confer jurisdiction on a board of arbitrators to settle the dispute. As I have already indicated, it cannot be held that the dispute has been referred to a board under the Act unless a notification has been issued, either by the Provincial Government or the District Magistrate as required in Section 3.