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Allahabad High Court · body

1987 DIGILAW 622 (ALL)

SHAMSHUL HAQUE v. ABDUL MABOOD

1987-05-21

B.L.YADAV

body1987
B. L. YADAV, J. This revision under Section 397/401 of the Code of Crimi nal Procedure, 1973, (for short the Code), is directed against the order dated 22-2-85 passed by the Vth Additional Sessions Judge, Basti, allowing the revision and setting aside the order dated 1-6-84 passed by the Munsif Magistrate, Basti, in a case under Sections 467/468/419/420/120-B of the I. P. C. 2. A complaint, against Shamshul Haque and others the present applicants, was filed disclosing offence under Sections 467/468/419/420/120-B of the I. P. C. It was alleged that a document was filed in the Court of Naib-Tehsildar, Dumaria-ganj. The offence under the aforesaid Sections was committed by the applicants by the time the document remained in the court of Naib Tahsildar. But when the document was filed in the court of Naib Tahsildar, the village, where the plots in dispute were situate, has come under consolidation operations and a notification under Section 4 of the U. P. Consolidation of Holdings Act, 1954, (for short the Act), was already issued- An application on behalf of the applicants was filed that as the complaint was filed before the court of Naib-Tahsildar and the offence was committed during the continuance of those proceedings, hence the complainant has got no authority under law to file the complaint against the applicants and the complaint was by Sections 195 (1) (b) and (c) of the Code. 3. The learned Magistrate by order dated 1-6-84 allowed the application of the applicants and held that the complaint was barred by Sections 195 (1) (b) and (c) of the Code. Against that order a revision was filed before the Sessions Judge by the complainant and the same has been allowed and it has been held that as the notification under Section 4 of the Act has already been issued, hence the Naib Tahsildar has no jurisdiction to entertain the application for mutation and even if the said mutation application was filed before the Naib Tahsildar, that would not confer jurisdiction upon him and it would be deemed as if the mutation application was filed before a court which has got no authority under law to entertain that application. The court of Naib Tahsildar cannot be said to be a court within the meaning of Section 195 of the Code as it could not entertain the application for mutation. The court of Naib Tahsildar cannot be said to be a court within the meaning of Section 195 of the Code as it could not entertain the application for mutation. Against this order the present revision has been filed by applicants (i. e. the opposite parties in the complaint ). 4. Learned counsel for the applicant urged that even though the application for mutation was filed at a time, when the village where land in dispute was situate, was under consolidation operation in pursuance of the noti fication under Section 4 of the Act, that could not have been decided in favour of either party in view of Section 5 (2) (b) of the Act, rather it must have been ordered to abate, but for the purposes of Section 195 of the Code the court of Naib Tahsildar must be deemed to be a court and private complaint would be barred by Section 195 (1) (b) of the Code. 5. Learned counsel for the opposite party, on the other hand, urged that the words no court shall take cognizance of any offence specified under Section 195 (1) (b) except on the complaint in writing of that court, obviously means that the court in which document was filed must have jurisdiction to entertain the case of application and must have power to decide it finally on merits. Unless the court has jurisdiction to decide it on merits, it could not be said to be a court and private complaint cannot be barred. 6. Having heard the learned counsel for the parties, the point for deter mination is as to whether the court of Naib Tahsildar can be said to be a court after the issuance of notification under Section 4 of the Act. In fact, even though it can entertain an application for mutation, but it cannot decide it or pass a final order as in view of 5 (2) (b) of the Act, the application would abate. In fact, the word court has not been defined in the Code, rather it has been defined under Section 3 of the Indian Evidence Act to the effect that the court includes all judges and Magistrates and all persons arbitrators legally authorised to take evidence. But this definition is not exhaustive. Otherwise, also, the word court means any person having jurisdiction to entertain a complaint, application or suit etc. But this definition is not exhaustive. Otherwise, also, the word court means any person having jurisdiction to entertain a complaint, application or suit etc. and to decide the same. In case the court has no power either to entertain or to pass a final order, it cannot be said that it has got some authority to entertain or to decide or to pass a final order. 7. In Rai Soap Factory & others v. S. P. Shantharaj and others, AIR 1965 SC 1449 , at page 1451, Para 9, it has been observed that by jurisdiction is meant the extent of power which is conferred upon the court by its constitution to try proceedings, its exercise cannot be enlarged because an extraordinary situation requires the court to exercise it. 8. In the instant case, it has to be seen as to whether the Naib Tahsildar before whom the application for mutation and correction of papers case was filed can be said to have jurisdiction to entertaia that application and to decide it. In this connection it is pertinent to have the connotation of the word jurisdiction as observed in Halsburys Laws of England, IVth Edition, Volume 10, para 715 as follows : "by jurisdiction is meant the authority by which the court has to decide the matters that are litigated before it or to take cognizance of matters presented in a normal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the court is constituted and may be extended to restricted by similar means. If on restriction or limitation is imposed, the juris diction is said to be unlimited. A limitation may be either as to grant or nature of matters and matters of which a particular courts has cognizance, or has to see over which the jurisdiction extends or it may partake of both the characters. " 9. In American Jurisprudence, Second Edition, Vol. 32-A, para 1228. it has been observed as follows : "the jurisdiction is essentially an authority to decide a given case, one way or the other. " [see Hagins v. Lavinea, 415 US 528 : 39 L. Ed. 2nd, 577]. 10. " 9. In American Jurisprudence, Second Edition, Vol. 32-A, para 1228. it has been observed as follows : "the jurisdiction is essentially an authority to decide a given case, one way or the other. " [see Hagins v. Lavinea, 415 US 528 : 39 L. Ed. 2nd, 577]. 10. It is abundantly clear that unless the Naib Tahsildars court has got authority to entertain an application for mutation or correction of papers and it decides it in any way, it could not be said that it has got the jurisdiction to entertain it. Any jurisdiction or authority of a court to entertain or to dispose it of finally is inherent. Only one part of it, namely, just entertainment would not constitute jurisdiction nor it can confer power on the court to decide it also. 11. After the issuance of notification under Section 4 of the Act, for the purposes of any grievance either for mutation or for correction of papers or for declaration of title etc. only objection could be filed under Section 9 or 9-A or Section 12 of the Act and the Naib Tahsildar has got no jurisdiction to entertain the application for mutation or correction of papers. It is, accordingly obvious that the Naib Tahsildar has no authority to entertain or decide the mutation application nor it can be said to be a court. The word court under Section 195 of the Code means a competent court with power to entertain any application or suit and to dispose it of on merits. But as only the consolidation authorities have the power or jurisdiction to entertain an application for mutation or correc tion of papers under Section 9, 9-A or 12, the Naib Tahsildar cannot be said to be a court within the meaning of Section 195 of the Code and even if an applica tion for mutation was filed before the Naib Tahsildar it cannot be assumed that he has authority to decide it also. Further the Naib Tahsildar cannot adjudicate the validity or genuineness of the document presented before him. I am of the opinion that the complaint was not barred by Section 195 of the Code and the order of Sessions Judge was correct, 12. In view of the discussions made hereinbefore, I do not find any merit in the present revision and the same is hereby dismissed. I am of the opinion that the complaint was not barred by Section 195 of the Code and the order of Sessions Judge was correct, 12. In view of the discussions made hereinbefore, I do not find any merit in the present revision and the same is hereby dismissed. The record of the case would be sent back immediately. Revision dismissed. .