Patna High Court
Jai Prakash Rai And Anr. vs Bans Lal And Ors. on 10 September, 1976
Equivalent citations: 1977(25)BLJR353
Author: Nagendra Prasad Singh
Bench: Negendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
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, 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:
(4) An order duly made under Section 48-E of an appeal under this section shall be final and shall not be called in question in any civil Court.
(5) If a suit is instituted challenging an order made under Section 48-E or on appeal under this section the Civil Court, shall have no power, during the pendency of the suit to stay the enforcement of such order.
4. From the aforesaid sub-sections of Sections 48-E and 48-F, it is apparent that a special forum has been provided by the Act in question for deciding disputes between the landlord and under-tenant in respect of threatened dispossession, possession and restoration of possession, and once a decision has been given in accordance with the procedure prescribed, then such decision has been given a binding effect even ousting the jurisdiction of the civil Court.
5. From a comparison of the provisions of Section 48E of the Act and Section 145 of the Code, it will appear that the conditions requisite for initiation of the proceeding under the two provisions are more or less same. Even under Section 145 of the Code, the Magistrate has to draw up a proceeding when there is an apprehension of breach of peace concerning land. He has also to decide as to which of the two contesting parties is entitled to be declared in possess on of the land in question and under certain circumstances, he can also direct restoration of possession of a party who has been wrongfully or forcibly dispossessed. However, there are some vital difference also. The proceeding under Section 48-E of the Act is meant for dispute only between landlord and under-tenant. There is no such restriction so far as Section 145 of the Code is concerned. Under proviso to Sub-section (4) of Section 145, the Magistrate can restore a party to possession only if he has been dispossessed within two months next before the date of the initiation of the proceeding under Section 145. There is no such limitation under Section 48-E of the Act. An under-raiyat can be restored to possession irrespective of the period of dispossession intervening. The order under Section 145 of the Code is subject to decision by a court of competent jurisdiction, which is generally meant by a Civil Court, whereas an order declaring possession or directing restoration of possession under Section 48-E of the Act is final and cannot be questioned even before a Civil Court. In this background, now it has to be judged as to whether during pendency of a proceeding under Section 48-E of the Act, a Magistrate can draw up a proceeding under Section 145 of the Code in respect of the same land.
6. Sub-section (13) of Section 48-E of the Act is as follows:
Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject-matter of a dispute after a proceeding is initiated under Sub-section (1) by the Collector:
Provided that nothing in this sub-section shall be deemed to affect the powers of a Criminal Court to take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceeding by the Collector.
In view of this Sub-section (13) of Section 48-E of the Act, it can be said without reservation that the intention of the Legislature is that after the initiation of a proceeding under Section 48-E no Civil or Criminal Court should have any jurisdiction over the subject-matter of dispute. The, controversy, however, arises due to the proviso which says that nothing in the main sub-section shall be deemed to affect the powers of a criminal court to take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceeding under the Act. Whether this proviso will cover only proceeding under Sections 107 and 144 or also a proceeding under Section 145 of the Code? In my opinion, the proviso only enables the criminal court to maintain peace during the pendency of the proceeding under Section 48-E and with that object in view, any appropriate proceeding can be drawn up, the words, "pending the final disposal of the proceeding by the Collector" are relevant and express the intention of the legislature that the criminal court is to "take any such action as may be necessary" for maintaining peace till that date. In other words, it should be an action with sole object of preventing breach of the peace. A proceeding under Section 145, no doubt, is also drawn up with this object in view, but the primary purpose is to decide the claim of possession of one of the parties to the dispute finally so far as the criminal court is concerned. It is not only to prevent breach of the peace for a particular period. In ray opinion, under the proviso, it was never contemplated that two parallel proceedings should be allowed to go on, one under Section 48-E of the Act and the other under Section 145 of the Code for deciding the identical questions of threatened dispossession, possession and restoration of possession.
7. The party, who has been declared in possession under Section 145, is to remain in possession until evicted therefrom in due course of law. This has been interpreted in many judicial pronouncements to mean by a decree of a civil court. Uday Sinha, J. has, however, held that this may include even a final order under Section 48-E of the Act, but, on a plain reading of Sub-section (6) of Section 145 of the Code, the words "evicted in time course of law" contemplated an order or direction subsequent to an order under Section 145, what will happen in cases where Magistrate decides a proceeding after the final order under Section 48 E has been passed? If he has jurisdiction to initiate a proceeding during the pendency of a bataidari proceeding, then the necessary corollary will be that he can decide it finally even after the disposal of the Bataidri case and he may take contrary view. There is nothing in the Act or the Code, how this anomalous position will be solved, except by saying that even if the decision under Section 145 is later but if it is in conflict with an order under Section 48-E then the order under Section 48-E shall prevail. If this is the legal possession, to which Uday Sinha, J. has also agreed, then, in my opinion, what is the purpose of initiating a proceeding under Section 145 and deciding the same when ultimately it has to give way to a final order under Section 48-E, whether passed earlier or after the decision by the Magistrate. This will also lead to multiplicity of proceedings inasmuch as same nature of dispute being adjudicated between the same parties at two forums.
8. Section 145 is the most important section under which a criminal court having jurisdiction over the land in question decides a dispute finally so far as the criminal court is concerned. If in view of the main Sub-section (13) of Section 48-E of the Act, a criminal Court is not to have jurisdiction over such subject-matter, then it is difficult to hold that it shall have jurisdiction over such subject-matter to initiate a proceeding and to decide the dispute, because of the proviso only carves out something which otherwise would have been covered by the main sub-section. Reference in this connection may be made to State of Rajasthan v. Leela Jain A.I.R. 1965 S.C. 1296, where it was observed-
so far as a general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is limit the main part of the section and carve court something which but for the proviso would have been within the operative part.
It, should not be easily inferred unless one is forced to that conclusion, that the proviso itself is the main provision empowering a criminal court to have jurisdiction over the subject-matter of dispute, in order to draw up a proceeding under Section 145 of the Code. In my opinion, this will make the main sub-section nugatory for all practical purposes.
9. Under the aforesaid circumstances, I am of the view that during the pendency of the proceeding under Section 48-E of the Act, a criminal Court can take only such action, as may be necessary, for preventing breach of the peace, till the proceeding under Section 48-E is finally decided and this will include a proceeding under Section 144, 107 or exercise of any other power vested in the criminal court for preventing breach of the peace. 'In my opinion, the learned Sub-divisional Magistrate knowing full well that a proceeding under Section 48-E of the Act was pending, should not have initiated a proceeding under Section 145 of the Code for the purpose of deciding the identical dispute which was pending before a special and exclusive form under the provisions of the Act whose decision is final and cannot be questioned even in a civil court.
10. During the course of hearing, my attention was also drawn to a supplementary affidavit filed on behalf of the petitioners saying that by order dated 15.4.1974, the Land Reforms Deputy Collector, who has been vested with the power of a Collector under Section 48-E of the Act, has found possession of the petitioners and rejected the claim of the opposite party of being under tenant, and has rejected their applications filed under Section 48-E of the Act. Even in that view of the matter, now there is no question of enquiry in respect of the question of possession by the learned Magistrate under the provisions of the Code.
11. In the result, the application is allowed, and the order dated 15.1.1973 drawing up a proceeding under Section 145 of the Code is quashed.