Patna High Court
Rameshwar Rai And Ors. vs Raghu Kahar And Anr. on 22 November, 1960
Equivalent citations: AIR1961PAT369, 1961CRILJ371, AIR 1961 PATNA 369, 1961 BLJR 144
ORDER R.K. Choudhary, J.
1. The members of the first party in a proceeding under Section 147 of the Code of Criminal Procedure are the petitioners in this care. The dispute relates to certain customary rights exercised over plot No. 572 of Khata No. 146. The case of the petitioners is that the plot in question is ghainnaz-rua malik land, and over this land the residents of the village, along with the ancestors of the. petitioners, used to keep dead bodies for some time for collection of persons f°r carrying the same to river Ganges for cremation from time immemorial, and that the residents of the village burnt 'sambat' in Phalgun every year over that piece of land since time immemorial.
They thus claimed to have acquired customary rights for using said plot for keeping the dead bodies before being taken to the Ganges and for burning 'sambat' every year in the month of Phalgun. The opposite parties, who are the members of the second party in the proceeding, claimed the plot in question to be in their cultivating possession as having been taken on settlement from the landlord. During the pendency of the proceeding, the petitioners made an application filed in this Court, for attachment ot the plot in question, because they apprehended that all the signs of the burning of 'sambat' and keeping of dead bodies would be removed by the members of the second party if they were permitted to cultivate the land.
They prayed for maintaining the status quo by attaching the land in question. The learned Magistrate rejected that application, because, in his opinion, there could not be any attachment of the land in a proceeding under Section 147 of the Code of Criminal Procedure. After having unsuccessfully moved the learned Sessions Judge, the petitioners have come up to this Court for setting aside the order of the learned Magistrate.
2. It has been contended by Mr. Ghose, appearing for the petitioners, that the order of the Magistrate is wrong in law, because, reading the provisions of Section 147 along with those of Section 145 of the Code of Criminal Procedure, the land over which the right was claimed in the proceeding under Section 147 could be attached. Before dealing with that question, however, I may point out here that in any case the prayer made by the petitioners could not have been allowed by the Magistrate.
3. The petitioners wanted the Magistrate to attach the land in question so as to maintain the status quo. In other words, they wanted the Magistrate to permit them to keep their dead bodies and burn 'sambat' over the land in question pending the disposal of the proceeding. Such a prayer is not contemplated by the provisions for attachment. By attachment the Court takes possession of the property in dispute and the same is restored to the party which ultimately comes out successful in the proceeding.
It is not, however, meant for enabling, One of the parties to use the same in accordance with the claim put forward which is itself the subject-matter of enquiry in the proceeding. In other words, by making such a prayer the petitioners wanted to exercise the right which, as a matter of fact, is disputed by the other side. Such a course is never contemplated to be adopted by making an attachment of the property. Moreover, according to the prayer of the petitioners themselves, the main object of getting the attachment was to prevent the disappearance of the signs of keeping the dead bodies and burning 'sambat.' But in this case the report of the Block Development Officer as well as his evidence show that the land had already been cultivated by the members of the second party, and, that being so, there could be no meaning in making the attachment preventing the second party from cultivating the land so as not to make the signs disappear.
4. Be that as it may, even in law, in my opinion, there could not be any attachment of the plot in question in this proceeding, and the order of the learned Magistrate in that regard is perfectly right. Mr. Ghose, as already observed, lias contended that a. reading of Section 147 along with Sec-tion 145 of the Code of Criminal Procedure makes it clear that such attachment could be made. Section 147 deals with a case where there is an apprehension of a breach of the peace regarding any right of user of any land or water, whether such right be claimed as an easement or otherwise.
If the Magistrate is satisfied that there exists a dispute likely to cause a breach of the peace, he is empowered to require the parties concerned to attend the Court and to put in written statements ot their respective claims. Sub-section (1A) of that section states that the Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, it possible, decide whether such right exists and the provisions of Sea 145 shall, as far as may be, be applicable in the case of such inquiry.
Sub-sections (2) and (3) of that section make provisions for orders to be passed by the Magistrate according as he finds the existence or non-existence of the claimed rights established. The third proviso to Sub-section (4) of Section 145, which deals with disputes concerning land or water, states that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section. Mr. Ghose, therefore, urged that, Sub-section (1A) of Section 147 having made provision for application of the provisions of Section 145, the Magistrate could be legally entitled, under the above proviso to Sec, 145 to attach the subject of dispute pending his decision in the proceeding.
In my opinion, the argument is based on misconception o£ the expression "subject of dispute." In a proceeding under Section 145 o£ the Code, the dispute relates to the actual possession of any land or water or the boundaries thereof, and the Magistrate, under that section, is empowered to decide in the proceeding the claims of the parties with regard to the actual possession over the same. It is apparent that, the dispute being with respect to possession over water or land, the subject of dispute is the water or the land itself, as the case may be.
The third proviso to Sub-section (4) of that section, therefore, is meant to make attachment of the said water or land, as the case may be, as being the subject of dispute. But in a proceeding under Section 147 of the Code, in my opinion, the water or the land itself is not the subject of dispute, but the subject of dispute is only the right of its user, either by easement or otherwise. In other words, the claim of possession of the adverse party is not at all in dispute in this proceeding and the claim of the other party is only to have use of the same notwithstanding the Possession of the adverse party.
That being so, the water or the land itself could never form the subject-matter of dispute in the proceeding under Section 147 of the Code of Criminal Procedure, and, as such, it could not be attached under the third proviso to Sub-section (4) of Section 145 of the Code. Even Sub-section (1A) of Section 147 of the Code says that the provisions of Section 145 shall as far as may be, be applicable in the case of such inquiry. My concluded opinion, therefore, is that the provisions of See. 145 of the Code with regard to attachment are not applicable to a proceeding under Section 147 of the Code of Criminal Procedure.
5. The view that I have taken gains support. from various authorities, In Ali Mohammad Mondal v. Fakiruddin Munshi, AIR 1920 Cal 708, the dispute was with respect to collecting of lac on plum trees standing on certain land belonging to the tenants of a zamindari concern. A proceeding under Section 145 of the Code of Criminal Procedure was started and the lac trees were attached pending further orders. It was pointed out by the High. Court that "lac" did not fall within the meaning ot the expression "land", and, as such, neither Section 145 nor Section 147 of the Code could be applicable to the case.
But, assuming Section 147 to be applicable, their Lordships observed that the order of attachment of the lac was without jurisdiction as Section 147 does not provide for attachment, and, having regard to the subject-matter of that section, no order for attachment could be made. In another case of the Calcutta High Court, in Rahim Baksha v. Abdul Wabad, ILR (1948) 1 Cal 364, the Magistrate in a proceeding under Section 147 of the Code of Criminal Procedure found it difficult to come to a conclusion one way or the other as regards the right claimed by the parties, and the question for consideration arose whether attachment of property could be made and a receiver appointed in that proceeding.
It was held that the Magistrate had no jurisdiction either to attach the property or to appoint a receiver. It was pointed out in that case that in a proceeding under Section 147 of the Code there is no conflict regarding the question of possession as this section deals with an alleged right of user of any land or water. It was further pointed out that an attachment means dispossession, and where there is no dispute regarding possession the Court could not dispossess the party which is admittedly in possession of immovable property.
6. In Chelliah Pillai v. Ramiah Thevar, AIR 1942 Mad 77, the question arose whether a Magistrate, who was unable under Section 147 of the Code to decide whether a right of easement in respect of certain lands existed or not, could order attachment of those lands under Section 146 of the Code, and it was held that he could not make any order of attachment because such an order could only be passed in a dispute with regard to immovable property which could be dealt with under Sections 145 and 146 of the Code.
Though this case is not directly applicable to the present case, the principle of Jaw on which that case was decided, namely, that such an order could be passed only where there was a dispute with regard to immovable property, is equally applicable to the present case. In Mathai Jacob v, Ravivarman Thirupad, AIR 1953 Trav-Co. 202, the District Magistrate passed an order under Section 147 of the Code requiring the parties to appear before him and put in written statements of their respective claims regarding the right of fishing in certain wet lands, and since the matter was an emergent one, he attached the property in dispute and appointed the Sub-Inspector of Police as receiver thereof, and further directed to allow the second petitioner to exercise the right of fishing in the same until, further orders.
The latter portion of the order was challenged as being ultra vires the powers of the District Magistrate and void. It was held in that case that there was no express authority conferred upon the Court either to pass an order of attachment or to permit the second petitioner tb exercise the right of fishing, and the provisions of Section 145 authorising attachment of property and appointment of receiver could not apply in view of the subject-matter ot the enquiry in a proceeding under Section 147 of the Code. -
It was pointed out that the subject-matter of an enquiry under Section 147 is an abstract right, though that abstract right has relation to the use ot immovable property, and, .the right itself being abstract, has no concrete existence and does not, therefore, admit of being possessed physically and being attached.
7. The same view has been taken by the Rajas-than High Court in Rudi v. Ram Kumar, (S) AIR 1953 Raj 75. It was held in thai; case that, in a proceeding under Section 147 of the Code of Criminal Procedure, an order of interim attachment of property, about the use of water of which there was a dispute between the parties, could not be made In Ram Lal v. Chuni Lal, AIR 1960 J. and K. 66, after a consideration of various authorities, the law on the subject has been summarised as follows: The scope of Sections 145 and 147 of the Code markedly differ as does the subject-matter of the inquiry under the two sections.
The provisions of Section 145 empowering a Magistrate to. attach the subject of dispute cannot be disassociated from the subject matter of the inquiry and the question of possession involved in such inquiry. To import the attachment provision of Section 145 into Section 147 would be to introduce something into the latter section which is really not germane to it. Rights of user of land or water with which Section 147 is concerned are such abstract rights as cannot be, actually taken possession of or put into the actual possession of a person appointed by the Court. Therefore, the proviso to Sub-section (4) of Section 145 relating to interim attachment cannot be made applicable to the case of an inquiry under Section 147.
8. Mr. Ghose, however, in support of his contention, has placed reliance on a decision of the Calcutta High Court in Mukul Ranjan Chatterjee v. Champa Bala Roy, AIR 1956 Cal 231. That case, no doubt, supports the contention of Mr. Ghose, because it was held in that case that, even though Section 147 of the Code itself does not contain any provision for an interim order of attachment and Section 146 does not apply to the proceeding under Section 147, still by virtue of Section 147(1) the provision contained in Section 145(4) is attracted, under the proviso whereof a Magistrate may, where necessary, attach the subject-matter of the dispute.
In coming to that conclusion, Guha Ray, J. observed that, although the dispute was really over the question whether the second party had a right or not to use the land as a park, the subject of the dispute was the land itself, and not the right of user of that land; and consequently there was nothing wrong or illegal with the interim order ot attachment made by the Magistrate. What happened in that case was that the proceeding that was drawn up was couched in the language of Section 145 of the Code as in the actual proceeding the learned Magistrate mentioned that the dispute was likely to induce a breach of the peace between the parties over the possession of the land described.
If the above observation of the learned Judge is based on the ground that the subject-matter of dispute in the proceeding was the land itself, then this case is no authority for the contention raised by Mr. Ghose. But the learned Judge in that case himself pointed out that a proceeding under Section 147 could be initiated only if there was a dispute not over the possession of the land but over the right of uesr of the land in question, and the learned Magistrate should have, therefore, adhered to the terms of that section in drawing up the proceeding.
The actual proceeding under Section 147 had, therefore, to be modified so as to conform to the language of that section. In that view of the matter, even in that case the land could not be said to be the subject-matter of dispute, and, with due respect to the learned Judge, I am unable to agree with the view of law taken by him in this regard. Moreover, the two earlier decisions of that Court taking a contrary view were not, considered in that case. That case, therefore, cannot be of any assistance to the petitioners.
9. For the reasons given above, it is manifest that the order of the learned Magistrate refusing the application of the petitioners for attachment of the plot in question is perfectly legal and justified. The application is, therefore, without any merit, and it is, accordingly, dismissed.