Kameshwar Singh v. State Of Bihar — 1995 DIGILAW 302 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. Being aggrieved by the order dated 15-2-1990 passed by the Sub-divisional Magistrate, Cbas by reason of which the proceeding under Section 144 of the Code of Criminal Procedure (shortly Ct. P.C) has been converted into a proceeding under Section 145, Cr. P. C. and an attachment order under Section 146(1) Cr. P. C. has been made appointing the Land Reforms Deputy Collector (shortly LRDC) as a receiver, the petitioner has moved this court. 2. Before dealing with the grievances made by the petitioner it would be appropriate to petray the factual backgrounds of the case : The dispute relates to plot No6. 15 and 5 of Khata No. 28 of village, Bandogora in the district of Bokaro (previously at Dhanbad). The area of plot No. 5 is 63.60 acres whereas the area of plot No. 15 is 45.60 acres. The petitioner claims 5 acres in plot No. 5 and 42.60 acres in plot No. 15. According to the case of the petitioner, originally the land in question belonged to one Shanti Ram Chattarnath Mahto and others as their raiyati lands. Against the notification of 1952 by which acquisition of the land for the forest department was made, Shanti Ram and 11 co-sharers filed Title suit No. 140 of 1954 in the court of the Munsif at Purulia as at the relevant time Dhanbad sub-division was a part of Manbhum district of which Purulia was the Headquarter on 24-7-1956 a decree was passed in favour of the plaintiffs of the said Title suit in which it was held that the said Government notification could not convert plot Nos. 15 and 5 as private protected forest of the Forest Department and, as such, the right, title and interest of the plaintiffs was maintained over the same. The said decree was not impugned by the State Government. In 1958 a preliminary notice was issued under Land Acquisition Act but no action was taken under Section 5(a) and 6 of the said Act nor any declaratory notice was issued by appointing Settlement Officer. In the said notification under Section 58 of the Act it was specifically mentioned that the acquisition of the plots and other lands for the forest department was made subject to all rights of the persons. As no further step was taken in pursuance of that notice, no compensation was also given to the persons concerned. In the said notification under Section 58 of the Act it was specifically mentioned that the acquisition of the plots and other lands for the forest department was made subject to all rights of the persons. As no further step was taken in pursuance of that notice, no compensation was also given to the persons concerned. In 1984 the petitioner and 61 other persons purchased 4 1/2 acres of land in plot No. 5 and 42.60 acres in plot No. 15 from Chattarnath Mahto and nine others by virtue of a registered sale-deed. After purchase, those purchasers formed a co-operative society which was registered under the Bihar Co-operative Societies Act. At the Instance of Range Officer, Chas a proceeding under Section 144, Gr. P. C. was initiated in the year 1966 against Chattarnath Mahto and others for the lands in question. The proceeding was converted under Section 145, Cr. P. C. and subsequently by order dated 25-3-68 possession of the second party was declared and the Ist party was restrained from disturbing their possession. The said order was not impugned by the Forest department. Again in 1987 another proceeding under Section 144, Cr.P.C. was initiated at the instance of the Forester but in view of the order passed previously in Title Suit as well as the proceeding under Section 145 Cr.P.C. this proceeding was dropped by order dated 12-2-1988. The forest department, ultimately filed a case under the provisions of Bihar Land Encroachment Act which was also decided against it by judgment dated 26-4-1989. However, an appeal was preferred against the aforesaid order and the same was pending. During the pendency of the said appeal, another proceeding under Section 144, Cr.P.C. was initiated at the instance of the forest department. The order dated 28-12-1989 as contained in Annexure 4 reveals that a proceeding under Section 144, Cr P. C. was initiated and the petitioner-2nd party was directed to appear and file show cause. This case was registered as M.P. case No. 1164/89. By the impugned order dated 15-2-1990 the proceeding under Section 144, Cr.P.C. was converted into a proceeding under Section 145. Cr.P.C, the land was attached under Section 146(1), Cr.P.C. and the LRDC has been appointed as receiver. 3. Mr. This case was registered as M.P. case No. 1164/89. By the impugned order dated 15-2-1990 the proceeding under Section 144, Cr.P.C. was converted into a proceeding under Section 145. Cr.P.C, the land was attached under Section 146(1), Cr.P.C. and the LRDC has been appointed as receiver. 3. Mr. Mahto, learned Standing counsel assailed the order of the Magistrate mainly on the ground that the order impugned does not show that the Magistrate has applied his mind to the facts of the case inasmuch as he has not explained the circumstances on which he has come to a conclusion that a composite order under Sections 145(1) and 146(1), Gr.P.C. was necessary. In is further contended that only because a notification under Section 29 of the Indian Forest Act was published, in law possession of the forest department cannot be presumed. 4. The stand of the forest department, on the other hand, in the counter-affidavit is that the B.P.L.E. appeal was disposed of and the matter has been remanded back to the LRDC, Chas and, as such, the present application is premature. The main case of the department is that in B.P.L.E. case No. 19 of 1988-89 which was filed against the petitioner for illegal encroachment of the land in dispute, the petitioner has injuncted temporarily from going over the land in any manner till the disposal of the proceeding. It is not denied that the decision went in favour of the petitioner. Appeal No. 31/89 was preferred by the department and again temporary injunction was granted. It is alleged that during the continuation of the said temporary injunction, the petitioner violated the order of the Deputy Commissioner passed in appeal and as the petitioner caused breach of peace, the proceeding under Section 144, Cr.P.C. was initiated on the police report. It is stated that the impugned order is not a final one inasmuch as the court below has observed that during the pendency of the B.P.L.E. appeal No. 31/89 it was unable to come to a conclusion about the possession over the schedule land and, therefore, the order of attachment was made and a receiver was appointed. Further stand of the department is that the appellate court remanded the matter to the LRDC after holding that the land in question is a public land. Further stand of the department is that the appellate court remanded the matter to the LRDC after holding that the land in question is a public land. The order of the LRDC was set aside in appeal and the Deputy Commissioner, Dhanbad directed the LRDC to decide the question as to whether the petitioner or the opposite parties have any legal right over the land in question. Apart from the aforesaid facts, the case of the opposite parties is that the said land was notified under Section 29(3) of the Indian Forest Act (hereinafter referred to as the Act) as a protected forest which was published in Bihar Gazette dated 9-7-1948 (Annexure B). Similarly notification under Section 30 of the Act restraining all sorts of rights of the villagers over the land in question was published on 19th December, 1964 (Annexure C). A forest Settlement Officer was appointed who invited objections from all persons regarding their claims on the entire land of mouja Bandagora under which the land in dispute is situated. The said notice was also served on Chattarna Mahto, the alleged vendor of the petitioner but even after service of notice he did not file any objection. On 30-6-1964 the Forest Settlement Officer passed a final order restraining the rights of the villagers over the said forest land (Annexure E). Proclaimation under Section 29(3) of the Act was issued in respect of several plots including the plots in question. As no objection was received, a map of the forest land, its boundary and pillars showing the area of the protected forest was prepared. The land has been recorded in khatiyan part II and the rights of the villagers have been defined (Annexure H) by beat of a drum. On these facts it is asserted that the disputed lands having vested to the Forest Department, the alleged purchase of the petitioner by a registered sale deed from the heirs of Chattarnath Mahto is of no avail. Mr. Sahay appearing on behalf of the opposite parties, on the basis of the said facts, strongly contended that the Magistrate on consideration of facts and circumstances of the case has rightly passed the impugned order which cannot be interfered by the High Court. 5. Mr. Sahay appearing on behalf of the opposite parties, on the basis of the said facts, strongly contended that the Magistrate on consideration of facts and circumstances of the case has rightly passed the impugned order which cannot be interfered by the High Court. 5. However, according to the petitioner, he and others purchased 4 1/2 acres of land in plot No. 5 and 2.60 acres in plot No. 15 in 1984 and in 1987, i.e. after their purchase, another proceeding under Section 145, Cr. P. C. being case No. 1701/87 was initiated at the instance of the Forester but the same was also dropped by an order dated 12-2-1988 (Annexure 2). 6. As I have noticed earlier that when the D.C.L.R. in the said B.P.L.E. case held that the land was not a public land and dismissed the BPLE case, the oposite parties preferred an appeal before the Deputy Commissioner, Dhanbad being Appeal No. 31/89. The Deputy Commissioner, again remanded that matter for fresh consideration according to law by his order dated 2-6-1990. At this juncture some further developments which are not disputed by the opposite parties, are to be noted. After the matter was remanded by thej appellate court, the DCLR by his order dated 16-3-1991, considering thej documents and evidences on record again decided the case in favour of the petitioner. It appears that though the DCLR passed the aforesaid order in favour of the petitioner but he sent his order for approval before the Deputyf Commissioner. This part of the order was challenged by the petitioner before this court in CWJC No. 980/91(R) and a Division Bench of this court, by its order dated 3-5-1991, set aside the said portion of the impugned order by which the DCLR had sent his order for approval by the Deputy Commissioner. This court, inter alia, held that "respondent No. 3, therefore, has no jurisdiction to pass an order under Section 6 of the Bihar Public Land Encroachment Act subject to the proper order of the Deputy Commissioner" From the aforesaid facts it is clear that even the BPLE case registered against the petitioner by the opposite parties did not stand. 7. This court, inter alia, held that "respondent No. 3, therefore, has no jurisdiction to pass an order under Section 6 of the Bihar Public Land Encroachment Act subject to the proper order of the Deputy Commissioner" From the aforesaid facts it is clear that even the BPLE case registered against the petitioner by the opposite parties did not stand. 7. It is often found that Section 145, Cr.P.C. is frequently mis-applied and, as such, the Magistrates should be careful to see that the criminal courts are not used by the parties for the settlement of civil disputes or for manu- covering for position for the purpose of subsequent civil litigation; or as an easy way of getting possession of the land in dispute without going to the civil court; or for driving the other side to the civil courts to prove his title. The practice of taking to the criminal courts for a preliminary skirmish disputed question of right and title has been depricated by the various High Courts. It is generally noticed that as a successful criminal proceeding offers certain advantages, persons of means are frequently tempted to resort to this section as a trial of strength than to get the matter decided through a civil litigation. 8. If the facts of the instant case are scrutinised thoroughly it would be amply clear that having repeatedly failed, the concerned authorities without going to the civil court for deciding the right, title and interest of the parties finally are bent upon to take possession of the lands in question on the basis of some magesterial orders, which cannot be appreciated. 9. In this connection let us examine the import of Section 29 of the Act which reads as follows : "The State Government may, by notification in the official Gazette, declare the provisions of this chapter applicable to any forest land or waste-land which is not included in a reserved forest but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Goverment is entitled." The object and import of this section fell for consideration before a Division Bench of this court in the case of M/s. Jetmull Bhojraj V/s. The State of Bihar and others, reported in AIR 1967 Pat 287 . This court, inter alia, held that there is do provision in Chapter IV of the Forest Act for transfer of possession over any property to the Government. Legally therefore, possession cannot pass to the Government by mere fact of publication of the notification under Section 29 of the Act. In view of this authoratitive pronouncement, in my opinion, the stand of the State Government that as because a notification under Section 29 of the Act was published, possession of the land would be deemed to have been taken by the forest department, cannot be held to be legally sustainable and must be rejected. 10. From a perusal of the impugned order it appears that being noticed both the parties filed their show cause in the proceeding under Section 144, Cr. P. C. and the learned Magistrate has taken note of the police report which reveals that on being informed by the forest department the police officer went for inquiry and found that the Second Party was staking stones and depositing earth. The police report also reveals that on plot Nos. 5 and 15 road was being constructed despite the fact that there was a BPLE appeal No. 31/89 pending. The police also reported that there could be encroachment over plot Nos. 5 and 15. From this police report which has been reiterated in the impugned order by the Magistrate, it does not appear as to how by constructing road during pendency of the said BPLE appeal, there was some apprehension of breach of the peace, The police report does not indicate that. The learned Magistrate, on the other hand, has taken note of the previous Title Suit as well as repeated proceedings under Section 145, Cr.P.C. which all were decided in favour of either the vendor of the petitioner or the petitioner himself. The learned court below, it appears, has been completely misguided by the show cause filed on behalf of the opposite parties. In the operative portion he has held to the effect that "I am of the opinion that the matter being subjudice and the bona fide dispute over the possession of the plots, this proceeding is converted into a proceeding under Section 145, Cf. In the operative portion he has held to the effect that "I am of the opinion that the matter being subjudice and the bona fide dispute over the possession of the plots, this proceeding is converted into a proceeding under Section 145, Cf. P. C. The land is also attached under Section 146(1), Cr.P.C. till further orders as this court (illegible) of BPLE appeal No. 31/89, is unable to come to a decision about possession of the scheduled land. Land Reforms Deputy Collector, Chas is appointed receiver of the scheduled land. Inform the parties. Direct the DCLR, Chas to take the schedule land under his possession. Transfer it to my personal file, put up on 7-3-1990". 11. From the aforesaid findings it is clear that the learned Magistrate has exercised his jurisdiction erroneously by converting the proceeding into a proceeding under Section 145, Cr.P.C. In the case of Saudagar Mahto and another V/s. Ramjiwan Prasad Singh reported in 1977 BLJR 284 , this court, inter alia, held that it is well known that in every case where proceedings are drawn up under Section 145, Cr.P.C, there is an apprehension of breach of the peace. Unless there is no such apprehension, the fact giving jurisdiction to the Magistrate to start a proceeding under Section 145 of the Code of itself would be absent, I have already indicated that the police report does not indicate any apprehension and, as such, the learned Magistrate could not have converted the proceeding under Section 145 of the Code. 12. The next question which is to be decided as to whether a composite order under Section 146 of the Code can be made by which, while attaching the property, a receiver can be appointed. In the case of Amrit Singh and others V/s. Gyandeo Sharma and another, reported in 1978 Cr LJ 671, this court quashed the order passed under Section 146 of the Code on the ground that if there is no apprehension of breach of the peace then the proceeding under Section 145 of the Code cannot be initiated. It was held that a case of emergency as contemplated under Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of the peace. Both cannot be equated. It was held that a case of emergency as contemplated under Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of the peace. Both cannot be equated. A mere statement on the part of the Magistrate that he thinks that there may be breach of the peace on the disputed land any time, cannot be taken to be that in his opinion it is a case of emergency. It is further held that even if the Magistrate says that the case is of emergency, that by itself may not be sufficient for attachment. In the order impugned the Magistrate has not explained the circumstances which necessiated him for thinking that it was a case of emergency. The absence of circumstances clearly indicates that he has not applied his mind to the facts of the case and, as such, order of attachment is vitiated in law. 13. Again in the case of Kishun Yadav and others v Asharfi Yadav and Section 146(1) and (2) of the Code has held as follows : "Thus a plain reading of Section 145(1) and Section 146(1) of the Code clearly goes to show that the order under Section 146(1) can only be passed after the Magistrate makes the order under Section 145(1) of the Code. This is not all, Before an order under Section 146(1) of the Code can be passed by the Magistrate he has to satisfy himself that the (1) the case is one of emergency or (2) if he decides that none of the parties was then in such possession as is referred to in Section 145 or (3) if he is unable to satisfy himself as to which of them was then in such possession of the subject of the dispute Under any of those circumstances, Section 146(1) of the Code empowers the Magistrate to attach the subject matter of the dispute until a competent court has determined the right of the parties thereto with regard to the person entitled to the possession thereof. As noticed above the order under Section 146(1) of the Code can only be passed after the Magistrate had already made an order under Section 145(1) of the Code. As noticed above the order under Section 146(1) of the Code can only be passed after the Magistrate had already made an order under Section 145(1) of the Code. It would thus appear that passing of an order under Section 145(1) of the Code is the first condition to be satisfied before any order under Section 146(1) of the Code can be passed. It may also be noticed that in the Proceedings under Section 145(1) of the Code the order of attachment as contemplated under Section 146(1) of the Code cannot be passed. An order under Section 146(1) of the Code can only be passed if any of the three conditions mentioned in this section is satisfied. So far as condition Nos. 2 and 3 are concerned naturally they cannot be satisfied unless the Magistrate decides that one of the parties was then in such possession or if he finds himself unable to satisfy himself as to which of them was then in possession. These two conditions can only be satisfied after the Magistrate examines the respective cases of the parties on the basis of the written statements filed by them. So far as the first condition is concerned, obviously, the order under Section 146(1) of the Code can be passed at any time after making an order under Section 145(1) of the Code if the learned Magistrate considers the case to be one of emergency From the scheme of these sections, it becomes clear that the order under Section 146(1) of the Code on the ground of emergency can be passed by the Magistrate but only after an order under Section 145(1) of the Code has already been passed. The question that now arises for consideration is whether these two orders can be passed simultaneously or not." The order was set aside even where the learned Magistrate only issued notice under Section 146 of the Code to show cause without stating about the reason for bis satisfaction about the case of emergency. In the aforesaid case the impugned order which was a composite order under Sections 144, 145 and 146 of the Code, was set aside as the same was not in terms of law on the subject. 14 Similarly, in the case of Mahendra Tiwary V/s. Mostt. In the aforesaid case the impugned order which was a composite order under Sections 144, 145 and 146 of the Code, was set aside as the same was not in terms of law on the subject. 14 Similarly, in the case of Mahendra Tiwary V/s. Mostt. Lal Pari Devi reported in 1981 BBCJ 570 , a Division Bench of this court observed that the order of attachment cannot be passed simultaneously in the sense that a Magistrate while initiating a proceeding under Section 145 of the Code, cannot at the same time also make an order of attachment. An order of attachment has got to be made subsequent to the initiation of the proceeding under Section 146 of the Code. 15. In view of the aforesaid pronouncement it has to be held that the learned Magistrate has completely erred in law in passing the composite order under Sections 145 and 146(1) and (2) of the Code. It has been repeatedly held that a proceeding under Section 145 of the Code can only be started for a bona fide land dispute. The opposite parties, as I have said, had full knowlege of the proceedings as they ware instrumental in initiating the proceeding against the raiyats as well as the petitioner and having failed in one after another, the department is trying to disturb the possession of the petitioner by repeatedly resorting to the jurisdiction of the Magistrate. I am of the view that the learned Magistrate while converting the proceeding under Section 146 of the Code and passing the order of attachment and appointing a receiver should have taken note of the fact that the very basis for either conversion of the proceeding under Section 145 or for passing an order of attachment under Section 146 of the Code was not in existence inasmuch as there is no finding either of any apprehension of breach of the peace or of any emergency and in such view of the matter the impugned order is vitiated in law and cannot be allowed to stand. 16. In the result this application is allowed. The impugned order dated 15-2-1990 is set aside.