In re: Kauser Ali Mandal v. Nurul Haque Laskar — 1985 DIGILAW 432 (CAL)

ORDER This revisional application, heard as contested application, is directed against seizure of some paddy and straw by the police of Joynagar P. S. on 22-11-1985 from plot nos. 219/498, 220/499 and 225/500, appertaining to khatian no. 924 of Mouza Joynagar, in pursuance of memo. of the Sub-Divisional Officer (S), 24 Parganas, dated 21-11-1985 and memo. of the Block Development Officer, Joynagar, dated 20-11-1985. 2. The petitioner is the owner of the aforesaid plot nos. 219/499, 220/499 and 225/500 of Mouza Joynagar by purchase in the year 1973. The opposite party no. 1 claimed to be a bargadar of these plots (hereinafter referred to as the disputed plots for the sake of convenience). There were proceedings under S. 144 Cr. P. C. at the instance of the opposite party no. 1. The opposite party no. 1 lost in all these proceeding. The opposite party no. 1 filed an application under S. 18(1) of the West Bengal Land Reforms Act, 1955, before the Bhag Chas Officer. The application was referred to arbitration. The verdict in the arbitration was that the opposite party no. 1 was never a bargadar in respect of the disputed plots. The opposite party no. 1 went on preferring applications, one after another, before the Bhag Chas Officer claiming barga right and could not be successful in these applications. Matters went on in this manner from 1973 to 1982. In the latter part of 1982, the opposite party no. 1 got an order in his favour from the Block Development Officer. The petitioner, claiming to be in possession of the disputed plots since his purchase in 1973, preferred a writ application, being C. R. No. 2943(W) of 1984, in this Court. In that Civil Rule, there was an order of injunction against the opposite party no. 1 and thereafter an order for maintenance of status quo. It was observed in the final order passed in that Civil Rule that though the petitioner had all along decisions in his favour till 1982, the climate changed thereafter and the local police through political influence, started giving reports about physical possession with the opposite party no. 1. It was stated in that final order that in an earlier proceeding, the opposite party no. 1 disclaimed his interest and that there was an award by village arbitrators against the opposite party no.1. 1. It was stated in that final order that in an earlier proceeding, the opposite party no. 1 disclaimed his interest and that there was an award by village arbitrators against the opposite party no.1. On observing that the recent report of the Junior Land Reform Officer dated 27- 6-1984 found possession with the opposite party no. 1 and that another bhag chas case filed by the opposite party no. 1 during the pendency of the writ proceeding was pending, it was directed in that final order passed in the Civil Rule that status quo regarding possession of the disputed plots should be maintained for three months from the date of that final order on 14-8-1985. The period of three months expired on 14-11-1985. The bhag chas proceeding is still pending. In the meantime, the petitioner was served with a notice dated 22-11-1985 from Sub-Inspector, Dhirendra Nath Biswas, of Joynagar P. S. forbidding him and the opposite party no. 1 from harvesting the paddy from the disputed plots and intimating that Junior Land Reforms Officer-II would harvest the paddy from these plots. There was reference in that notice from Joynagar P. S. to memo. no. 5908 dated 21-11-1985 from the Sub-Divisional Officer. Sardar, 24-Parganas, and memo. no. 1448 dated 20-11-1985 from the Block Development Officer-I Joynagar. After being served with that notice dated 22-11-1985, some of the paddy and straw of the disputed plots was seized by the police Joynagar P. S. under a seizure list dated 22-11-1985. These seized articles were kept in the custody of one Ichha Molla on condition of producing the same in the court of the Sub-Divisional Officer, Alipore. On alleging that this seizure was made by the police while the petitioner was cutting the standing paddy from the disputed plots and on alleging further that in spite of his best efforts, he could not procure a copy of the order/memo. of the Sub-Divisional Officer or the Block Development Officer, the petitioner approached this Court for cancelling the memo. dated 21-11-1985 of the Sub-Divisional Officer (S), the memo. dated 20-11-1985 of the Block Development Officer-I, Joynagar, as well as the notice dated 22-11-1985 from Sub-Inspector, Dhirendra Nath Biswas, of Joynagar P. S. and for passing appropriate orders, by filing the revisional application under S. 401/482 Cr. P. C. 3. Mr. dated 21-11-1985 of the Sub-Divisional Officer (S), the memo. dated 20-11-1985 of the Block Development Officer-I, Joynagar, as well as the notice dated 22-11-1985 from Sub-Inspector, Dhirendra Nath Biswas, of Joynagar P. S. and for passing appropriate orders, by filing the revisional application under S. 401/482 Cr. P. C. 3. Mr. Bhattacharyya, learned Advocate for the petitioner, has contended that the learned Sub-Divisional Officer acted illegally in sending the memo. dated 21-11-1985 on the basis of which the paddy was seized from the disputed plots while the petitioner was harvesting paddy in the disputed plots. 4. Mr. Mukherjee, learned Advocate for the opposite party no. 1, has contended that the memo. dated 21.11.1985 was sent by the Sub-Divisional Officer in the administrative capacity and cannot be challenged by way of re vision under the provisions of the Code of Criminal Procedure in this Court. According to Mr. Mukherjee, the remedy of the petitioner, if any, was by moving an application under Article 226 of the Constitution. 5. Mr. Mahata, learned Advocate for the State, brought the file containing the memo. dated 21.11-1985 from the Sub-Divisional Officer, Sadar, Alipore, to the Block Development Officer, Joynagar-I. It appears, on the basis of the submissions made by Mr. Mahata, that there was a co-ordination committee for harvesting disputes at Joynagar in 1985. There were two meetings of that co-ordination committee. One of these meetings was held on 7-11-1985. Shri Goutam Sanyal, Block Development Officer, Joynagar, Shri Prasanta Kumar Dey, Officer-in-Charge, Joynsgar P. S., and one Samar Mukherjee, Circle Inspector, office of the Junior Land Reforms Officer, were present in the meeting of that co-ordination committee on 7.11-1985. It was decided in that meeting to appoint the Junior Land Reforms Officer or the concerned Pradhan as Receiver for the disputed lands and for contacting the Sub-Divisional Officer, Sardar, Alipore, in the matter. In the next meeting of the co-ordination committee held on 18.11-1985, Goutam Sanyal, Block Development Officer, Joynagar, Prasanta Kumar Dey, Officer-in-Charge, Joynagar P. S. and Krishnadhan Chatterjee, Junior Land Reforms Officer, were present. It was decided in the meeting of the co-ordination committee on 18.11.1985 that the harvesting from the disputed plots should be made through a third party, viz., Junior Land Reforms Officer, as, otherwise, there would be a serious breach of peace and that the Sub-Divisional Officer should be informed in the matter by the Block Development Officer. It was decided in the meeting of the co-ordination committee on 18.11.1985 that the harvesting from the disputed plots should be made through a third party, viz., Junior Land Reforms Officer, as, otherwise, there would be a serious breach of peace and that the Sub-Divisional Officer should be informed in the matter by the Block Development Officer. Accordingly, the memo. no. 5908 dated 21-11-1985 was issued by the Sub-Divisional Officer, Sadar, Alipore, to the Block Development Officer, Joynagar, with reference to memo. no. 1448 dated 20-11-1985 from the Block Development Officer. In that memo. dated 21-11-1985, the Sub Divisional Officer intimated the Block Development Officer that the proposal of the co-ordination committee communicated by him by his memo. dated 20-11-1985 was approved. Mr. Mehata has contended, on the basis of these facts, that the memo. was issued by the Sub-Divisional Officer in his administrative capacity in discharge of his executive functions and cannot be called in question in criminal revision in this Court. 6. The main question for determination is, thus, whether the Sub-Divisional Officer in discharge of his executive functions can issue the memo. dated 21-11-1985, according approval to the proposal of the co-ordination committee, as a result of which paddy and straw were seized by the police on 22-11-1985 and were kept by the police in the custody of one Ichha Molla on condition of production of the seized paddy and straw in the court of the Sub-Divisional Officer, as and when called for. It appears on hearing the parties that after the seizure of paddy and straw on 22-11-1985, there was another seizure of paddy and straw from the disputed plots on 9-12-1985 and those seized paddy and straw were kept in the custody of one Yunus Ali Pailan on condition of producing the seized paddy and straw before the Sub-Divisional Judicial Magistrate, Alipore, on call. 7. Mr. Mukherjee has referred to the cases reported in 51 Cr.L.J. 346 : AIR 1950 Cal. 36 (Abdoola Haroon v. Calcutta Corporation), AIR 1962 SC 574 (Dargah Committee v. State of Rajasthan), ILR 42 Cal. 793 (Gulli Sahu v. Emperor), AIR 1948 All. 114 (Salet Singh v. Bali Singh), and AIR 1964 Mad. 185 (Subramoniom v. Commissioner of Police) and has argued that the memo. dated 21-11-1985 was issued by the Sub-Divisional Officer in his administrative capacity and is not subject to the revision by this Court. 793 (Gulli Sahu v. Emperor), AIR 1948 All. 114 (Salet Singh v. Bali Singh), and AIR 1964 Mad. 185 (Subramoniom v. Commissioner of Police) and has argued that the memo. dated 21-11-1985 was issued by the Sub-Divisional Officer in his administrative capacity and is not subject to the revision by this Court. This contention of Mr. Mukherjee cannot be accepted. Right to property is no longer a fundamental right. It is still a legal right under Article 300-A of the Constitution. If one’s property is taken away by the Executive without the authority of law, he would be entitled to legal relief on the ground that such executive action is in contravention of Article 300-A of the Constitution. The aggrieved party may have his remedy under Article 226 of the Constitution or by a civil suit. Seizure of paddy and straw from the disputed plots from the alleged possession of the petitioner, as per the allegations of the petitioner, in exercise of the "police power" of a State is one of the modes of deprivation of property, though no person shall be deprived of his property save by authority of law. Law in Article 300-A of the Constitution means an Act of Parliament or State Legislature or a Rule or a statutory order, having the force of law. No Act of Parliament or of State Legislature or any Rule or statutory order, having the force of law, could be cited by Mr. Mukherjee or Mr. Mahata to show that the Sub-Divisional Officer had no other alternative than to accept the recommendation of the co-ordination committee, as a result of which the petitioner could be deprived from the disputed plots and the paddy and straw, alleged to be reaped by him from the disputed plots, could be seized by the police. Mr. Mukherjee has taken resort to the provisions of the Police Act, 1861, and has referred to Ss. 4, 23, 24, 25 and 26 of the Police Act for the purpose of showing that the executive can pass such order, as done by the Sub-Divisional Officer in this case. Under S. 4 of the Police Act, 1861, the administration of the police throughout the local jurisdiction of the Magistrate of the district shall be under the general control and direction of such Magistrate. Mr. Under S. 4 of the Police Act, 1861, the administration of the police throughout the local jurisdiction of the Magistrate of the district shall be under the general control and direction of such Magistrate. Mr. Mukherjee contends that as the administration of the police is under the general control and direction of the District Magistrate as well as of the Sub-Divisional Officer within his sub-division, the Sub-Divisional Officer was within his rights to accept the recommendation of the co-ordination committee, as a result of which the paddy was seized. One a careful scrutiny of the provisions of Ss. 23, 24 and 25 of the Police Act, I do not come across any provision in these sections, on the basis of which the police could seize the paddy and straw from the disputed plots on the basis of the letter from the Sub-Divisional Officer. The power of the police to make seizure is mentioned in S. 100, 102 and 165 Cr. P.C. The police can make seizure only when there is any allegation of an offence before the police or suspicion or apprehension of commission of offence and search is necessary for the purpose of investigation into that offence or its prevention. When there was no allegation of commission or apprehension of commission of any offence by the petitioner, the police was not within its rights to seize the paddy and straw from the disputed plots by virtue of any of the provisions of seizure in Ss. 100, 102 or 165 Cr.P.C. As already stated, this seizure of paddy and straw cannot be justified on the basis of the provisions in Ss. 4 and 23 of the Police Act, when there is nothing in the Police Act to show that unless there is an allegation of or suspicion of commission of any offence before the police, the police has power to make any seizure. The cases referred to by Mr. Mukherjee are cases in which there were provisions in the different Acts, discussed in these cases, empowering a Magistrate to do something and the question involved in all these cases cited by Mr. Mukherjee was whether this power exercised by the Magistrate by virtue of the provisions in the statutes was exercised by the Magistrate in discharge of his executive functions or in discharge of his judicial functions. Mukherjee was whether this power exercised by the Magistrate by virtue of the provisions in the statutes was exercised by the Magistrate in discharge of his executive functions or in discharge of his judicial functions. The case of Abdool Haroon (51 Cr.L.J. 346) was a case under the Calcutta Municipal Act, 1923. Section 421(2) of that Act empowered a Municipal Magistrate to pass order for destruction. In the case of Dargah Committee ( AIR 1962 SC 574 ), the Magistrate acted under the provisions of S. 234 of the Ajmer and Merwara Municipalities Regulation (6 of 1925). In the case of Gulli Sahu (ILR 42 Cal. 793), a warrant issued by a political agent or resident in Nepal under S. 7 of the Indian Extradition Act, 1903, was to be executed by the District Magistrate in British-India in accordance with that Act. Under S. 45(3) of the Code of Criminal Procedure, 1898, the Sub-Divisional Magistrate was empowered to appoint a person as Mukhia of a village and that power of the Sub-Divisional Magistrate was discussed in the case of Salet Singh (AIR 1948 All. 114). In the case of Subramonium (AIR 1964 Madras 185), the learned Chief Presidency Magistrate, Madras was authorized by S. 387 of the old Code of Criminal Procedure, 1898, to make endorsement on warrant. In short, in all the cases referred to by Mr. Mukherjee, there were specific provisions in the different Acts, on the basis of which Magistrate passed some orders and the point for determination in those cases was whether those orders passed by the Magistrate were judicial orders or administrative orders. In the present case, neither the learned Advocate for the State nor Mr. Mukherjee could show me any provision in any Act, on the basis of which the Sub-Divisional Officer, by accepting the proposal of the co-ordination committee, can deprive a person from his property, without resorting to the procedures laid down in S. 144 or 145 Cr. P. C . The memo. dated 21-11-1985 sent by the ld. Sub-Divisional Officer to the Block Development Officer is, thus, illegal, being contrary to the provisions in Article 300-A of the Constitution. 8. I would have been inclined not to interfere with the memo. P. C . The memo. dated 21-11-1985 sent by the ld. Sub-Divisional Officer to the Block Development Officer is, thus, illegal, being contrary to the provisions in Article 300-A of the Constitution. 8. I would have been inclined not to interfere with the memo. dated 21-111985 from the learned Sub-Divisional Officer, provided there was no seizure of paddy and straw from the disputed plots by the police in pursuance of that letter from the Sub Divisional Officer. As already stated, there can be no seizure by the police in the absence of any allegation of or suspicion of commission of any offence the police by any person. It is the duty of the police to report the seizure made by them, in exercise of their powers under S. 100 or 102 or 165 Cr. P. C. to the Magistrate concerned. There is nothing to show that any such report was made by the police to any Magistrate. Under S. 102(3) Cr. P. C. inserted by the Code of Criminal Procedure (Amendment) Act, 1978, the police has been given the power to give custody of the properly seized to any person on execution of a bond by that person undertaking to produce the properly before the court, as and when required and to give effect to the further orders of the court as to the disposal of the same. Prior to the enforcement of this Code of Criminal Procedure (Amendment) Act, 1978, the police had no power to give custody of the property seized to any person on his executing a bond. As the police can give custody of a seized article to any person on execution pf a bond to produce the article before the court and to give effect to the further orders of the court as to the disposal of the same, this Court, in exercise of its power of criminal revision, will have power, in exercise of its inherent power under S. 482 Cr. P.C. to entertain the revisional application. This Court bas inherent power to expunge passage from judgment of subordinate court on the application of a third party, who is aggrieved by any remark in such judgment, even though no appeal or revision is filed against the judgment (State of Bombay v. Nilkanth, AIR 1954 Bombay 65, Raghubir Saran v. State of Bihar, 1964(1) SCA 454). This Court bas inherent power to expunge passage from judgment of subordinate court on the application of a third party, who is aggrieved by any remark in such judgment, even though no appeal or revision is filed against the judgment (State of Bombay v. Nilkanth, AIR 1954 Bombay 65, Raghubir Saran v. State of Bihar, 1964(1) SCA 454). If the High Court feels that the ends of justice require that an order should be made in an application, although that application is not contemplated by the Code of Criminal Procedure, the High Court can entertain that application and make necessary orders to secure the ends of justice. This was done by this Court in the case of Abdul Samad v. Corporation of Calcutta, ILR 33 Cal. 287. In that case of Abdul Samad (supra), there was deviation in the construction of a building. Section 449 of the Calcutta Municipal Act, 1899 gave a discretion to the Magistrate to pass an order for demolition on the request of the General Committee. Under that S. 449 of the Calcutta Municipal Act, 1899, if the General Committee was satisfied that the erection or re-erection of any building had been commenced without obtaining the permission of the Chairman, or (where an appeal or reference had been made to the General Committee) in contravention of any order passed by the General Committee, the General Committee could apply to a Magistrate and the Magistrate could make an order directing that the work done or so much of the same, as had been unlawfully executed, be demolished by the building or altered by him to the satisfaction of the Committee, as the case might require or directing that the work done, or so much of the same, as had been unlawfully executed, be demolished or altered by the Chairman at the expense of the owner of the building. The Magistrate had, thus, a discretion under S. 449 of the Calcutta Municipal Act, 1899, either to make or to refuse to make an order under S. 449 of that Act. On the ground that the learned Magistrate failed to exercise that discretion properly, in the facts and circumstances of that case, this Court, in exercise of its power of criminal revision, set aside the order of the Municipal Magistrate in that case. On the ground that the learned Magistrate failed to exercise that discretion properly, in the facts and circumstances of that case, this Court, in exercise of its power of criminal revision, set aside the order of the Municipal Magistrate in that case. This is also a case wherein, on the basis of the request of the co-ordination committee, the learned Sub-Divisional Officer accepted the proposal of the co-ordination committee. It was within the discretion of the learned Sub-Divisional Officer either to accept or not to accept the proposal of the co-ordination committee. As already stated there is no law either passed by the Parliament or by this State whereby a person could be deprived from his property, on the basis of recommendation of the co-ordination committee, without starting of at least a proceeding under S. 144 or 145 Cr. P. C. by any Executive Magistrate. As the learned Sub-Divisional Officer had his discretion not to accept the proposal of the co-ordination committee and as he was not competent to deprive a person from his property without starting a proceeding either under S. 144 or 145 Cr. P. C. in the facts of this case, this Court, in exercise of its power of criminal revision, will interfere with the order of the Sub-Divisional Officer, in exercise of its inherent power under S. 482 Cr. P. C. even though the petitioner has chosen not to move the writ court or to file a civil suit for alleged deprivation from his property by way of seizure of paddy and straw of the disputed plots by the police. I am, accordingly, of the opinion that the revisional application is maintainable. 9. It has not been submitted by the learned Advocate, appearing for the State, that the Police has reported to any court as yet the seizure of paddy from the disputed plots by them on 22-11-1985 or 9-12-1985. As such, an order for return of the seized paddy and straw is to be passed in this case under S. 482 Cr. P. C., as there could be no application by the petitioner in the matter before any court under S. 457 Cr. P. C. 10. The memo. no. 5908 dated 21-11-1985 sent by the Sub-Divisional Officer, Sadar, Alipore, to the Block Development Officer, Joynagar-I, is, accordingly, cancelled. P. C., as there could be no application by the petitioner in the matter before any court under S. 457 Cr. P. C. 10. The memo. no. 5908 dated 21-11-1985 sent by the Sub-Divisional Officer, Sadar, Alipore, to the Block Development Officer, Joynagar-I, is, accordingly, cancelled. Let the paddy and straw seized from the disputed plots by the police of Joynagar P. S. on 22-11-1985 and 9-12-1985 be returned to the petitioner. 11. This order is without prejudice to the right of the opposite party no. 1 to pray before the Bhag Chas Officer for giving him his share of the seized paddy and straw or the value thereof, after the seized paddy and straw are made over to the petitioner, and substantiate his claim in the matter. 12. Let a copy of this order be lent to the Sub-Divisional Officer, Sadar, Alipore, for compliance. The application is, accordingly, disposed of. Impugned memo cancelled; application disposed of giving directions.