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2007 DIGILAW 1615 (PAT)

Raj Kumari Devi v. State Of Bihar

2007-10-01

SADANAND MUKHERJEE

body2007
Judgment 1. Heard the parties. 2. This is an application for quashing the order dated 19.2.2006 passed by the S.D.C. Begusarai in Case No. 56 of 2006 by which a proceeding under Sec. 144 of the Cr.P.C. was initiated and further the order dated 21.2.2006 by which the proceeding was converted into under Sec. 145 of the Cr.P.C. and also attaching the subject of the dispute u/s 146 of the Cr.P.C. and thereby appointing a receiver within the aforesaid Sec. 146 of the Cr.P.C. 3. The case of the petitioners is that they were living in their houses after constructing the houses on the plot in question. They purchased the aforesaid land from one Arbind Narain Agrawal in the year 1985 and have been paying the rent to the Government of Bihar. The case of the petitioners is that after purchasing the lands on 14.2.1985 they are living in their respective thatched houses peacefully and without any interruption. It is further submitted that in the year 1985 a proceeding under Sec. 4(h) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Act) was initiated in respect of the lands in question, which was dropped in view of recommendation of the D.C.L.R., Begusarai based on the report of the Anchal Adhikari and no further action was taken. The recommendation of the D.C.L.R. is Annexure-5. Thereafter, in the year 1989/90 another proceeding was started under Sec. 4(h) of the Act which also ended as the revenue authority turned down the recommendation of the D.C.L.R. for cancellation of Zamabandi opened in the names of respective raiyats as being full of lapses, short comings vagueness and wanting necessary informations, a copy of the order is at Annexure-6 to this application. After the aforesaid order of the Government authorities vide Annexure-6, the D.C.L.R., Begusarai issued fresh notices to the petitioners alongwith nine others who appeared third time in 4(h) Case No. 1 of 1989/90. 4. The petitioners filed C.W.J.C. No. 445 of 2002 before this Court which was allowed by a Bench presided over by Hon ble Mr. Justice Aftab Alam vide order dated 29.4.2005, a copy of the said order is annexed as Annexure-7 to this petition. 5. 4. The petitioners filed C.W.J.C. No. 445 of 2002 before this Court which was allowed by a Bench presided over by Hon ble Mr. Justice Aftab Alam vide order dated 29.4.2005, a copy of the said order is annexed as Annexure-7 to this petition. 5. It has been submitted on behalf of the petitioners that by virtue of the sale deed, Khatian, mutation order, rent receipts they have every right, title and interest over their respective lands and houses standing on the same unless removed by the legal orders passed by the competent authority. It has further been submitted that when they were living in their respective lands and houses since their purchase after constructing the houses, the S.D.O. Begusarai alongwith other officials and 12 unknown persons on 28.11.2002 at 3 P.M. went to the residence of the petitioner no. 1 and asked to remove her belongings from the house and on refusal of which the house was demolished and the petitioner was forcibly ousted with abuses and the accused persons looted the properties worth Rs. 81,300/-. The petitioner no. 1 filed a complaint Case No. 1627-C of 2002 before the learned S.D.J.M., Begusarai under Sec. 379 and other allied sections of the I.P.C. The I aforesaid case was dismissed and then a revision application was filed. It is further submitted that after notice was issued in 4(h) Case No. 1 of 1989/90, the same was quashed by this Hon ble Court, and the petitioners after getting sanction of the Collector, D.C.L.R., Anchal Adhikari, Begusarai and also after getting the map plan of the house approved by the Executive Officer, constructed their respective houses on their respective lands, a copy of the order of the Executive Officer has been annexed as Annexure-8 to this petition. 6. In view of the aforesaid facts and circumstances, it is submitted that the petitioners have right, title and interest in the lands and houses in question and they have long peaceful, uninterrupted possession since the year 1985 over the respective pieces of lands. As regards opposite party nos. 6. In view of the aforesaid facts and circumstances, it is submitted that the petitioners have right, title and interest in the lands and houses in question and they have long peaceful, uninterrupted possession since the year 1985 over the respective pieces of lands. As regards opposite party nos. 6 and 7, it has been submitted that they do not have any right, title and interest over the plot in question and as such apparently there is no dispute which attracts the proceeding under Sec. 144 of the Cr.P.C. It has also been submitted that there is no sufficient ground to initiate a proceeding under Sec. 144 of the Cr.P.C. and further without giving any opportunity to the petitioners for showing cause and without perusal of any documents and papers a proceeding under Section 145 of the Cr.P.C. was drawn which is misconcieved as no breach of peace existed on the lands in question. It is further submitted that without giving any opportunity to the petitioners for filing written statement, no proceeding under Sec. 145 of the Cr.P.C. is called for or warranted, and the same deprived the petitioners of their ownership as well as right, title and interest over the lands in question. 7. Attention has been drawn towards the fact that simultaneously the proceedings under Sections 145 and 146 of the Cr.P.C. have been drawn. It has been submitted on behalf of the petitioners that they had also filed several representations to the Collector, Begusarai to prevent the miscreants from disturbing them in their peaceful possession over the lands and houses. It has been submitted that the orders as contained in Annexures-9 and 10, which are sought to be quashed, are unfair, unimpartial, arbitrary, mala fide and the same are infringing the petitioners right, title, interest as well as possession. 8. In this case a counter affidavit has been filed by opposite party no.6 stating therein that assertion made on behalf of the petitioners that they had constructed their houses over 4 Kathas of disputed lands is completely vague, denied the same and stated that they had never constructed any house over the lands in question. 8. In this case a counter affidavit has been filed by opposite party no.6 stating therein that assertion made on behalf of the petitioners that they had constructed their houses over 4 Kathas of disputed lands is completely vague, denied the same and stated that they had never constructed any house over the lands in question. The aforesaid contention of the opposite party is said to be supported on the basis of the proceedings under Sections 145 and 146(1) of the Cr.P.C. which indicates that only one Gumti has been installed over a portion of the disputed land on 18.2.2006. It has been submitted on behalf of the opposite party that the ditch (Garha) incorporated in Khatian never changed its charactor and it has been coming in public use. It has also been submitted that on several occasions the petitioners and others had illegally tried to encroach upon the ditch, but they could not succeed in it due to interference of the Begusarai district administration. In support of the same a report of the Circle Officer is annexed with the counter affidavit which includes recommendations regarding taking steps under Sec. 4(h) of the Act in respect of the lands in question i.e. 1 bigha 8 kathas and 5 dhurs, which finds mention in Annexures-9 and 10, which are under challenge in this court. It is stated that for the first time a proceeding under Sec. 4(h) of the Act was initiated for cancellation of Zamabandi of all the persons including the petitioners, copy of that order is annexed as Annexure-B to the counter affidavit, which covers the entire area, i.e. 1 bigha 8 kathas and 5 dhurs of the lands which includes Zamabandi No. 1049. It has further been submitted on behalf of the opposite party that the Additional Collector, Begusarai and the District Magistrate, Begusarai confirmed the recommendation of the D.C.L.R. for cancellation of the Zamabandi to the State Government through the Commissioner, Annexure-C is the copy of the aforesaid order dated 19.1.2001, wherein and whereunder, recommendation for cancellation of Zamabandi to the State Government through Commissioner has been mentioned. It has been submitted that the Additional Secretary of the Government of Bihar vide Annexure-6 to this application had asked for some clarification and in pursuance of which a notice dated 30.10.2002, which was challenged in C.W.J.C. No. 445 of 2003, was issued, however, the same was quashed in the writ petition as the petitioner has placed distorted facts and concealed the real facts. It has been submitted that initiation of the proceedings under Sections 145 and 146(1) of the Cr. RC. is quite legal and the petition for quashing the order of initiation of the proceeding is fit to be dismissed. 9. In the application the lands purchased by the petitioners has been shown as 4 kathas of land in plot no. 342 and not the entire land of the proceeding. The aforesaid land was purchased from one Arbind Narain Agrawal and the same appears to have been confirmed even by the documents produced on behalf of the opposite party. So far Annexures-9 and 10, i.e, proceeding under Sec. 144 of the Cr.PC. and also the simultaneous proceeding u/s 145 of the Cr.RC. as well as attachment of the property u/s 146(1) of the Cr.PC. are concerned, the subject matter of dispute relates to 1 bigha 8 kathas and 5 dhurs of plot no. 342 and it appears that the petitioners are claiming only a part of the aforesaid area, i.e., 4 kathas which also appears from the documents furnished on behalf of the petitioners. Certain documents had been shown in course of hearing of this application, one of such documents is an application for quashing of the proceeding u/s 107 of the Cr.PC. filed by the petitioner in Cr. Misc. No. 15177 of 2006, wherein and whereunder, vide order dated 31.8.2006 the Hon ble Single Judge of this Court quashed the said order u/s 107 of the Cr.PC. as the notice was vague and the same did not indicate any clear position of lands. Another document is a copy of the order dated 11.5.89 passed in Case No. 424(M) of 1989 (Ram Kishun Singh vs. Prakash Singh) which have been shown before this Court, which indicates that the proceeding did not fulfil the ingredients of Sec. 145 of the Cr.PC. also showing that there is no claim for declaration of possession by the second party members. also showing that there is no claim for declaration of possession by the second party members. It appears that in the aforesaid order the opposite party took stand that the disputed land is refuge water accumulation place near the locality. It has been submitted on behalf of the petitioners on the other hand that the opposite party nos. 6 and 7 have not claimed title or possession over the land in question. 10. In this connection on behalf of the petitioner a case Udai Narain Singh V/s. State of Bihar, 2004 4 PLJR 207 has been cited to indicate that satisfaction of the Magistrate regarding apprehension of breach of peace in between the parties over a dispute must be recorded and the Magistrate merely stating that the documents placed could not indicate as to which one of them is in possession of the disputed land in question is not sufficient. 11. Further a Division Bench Judgment of this Court Mahendra Tewari V/s. Mostt. Lal pari Devi, 1981 0 BBCJ 570 has been cited inrespect of 145 Cr.PC. to indicate as follows: "An order of attachment cannot be passed simultaneously in the sense that a Magistrate, while initiating a proceeding under Sec. 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 proceedings in the circumstances mentioned in Sec. 146(1) of the Code. Sufficient support can be derived for this view from the second case of the Supreme Court reported in A.I.R. 1980 S.C. 242 (Mathura Lai vs. Bhanwar Lai)." 12. Further on behalf of the petitioner a Full Bench judgmentt of this Court as Gaya Singh & ors. V/s. Doman Singh, 1979 2 BLJ 348 has been cited to show that the Magistrate can attach subject matter of dispute if he decides that none of the parties was in possession of the disputed property or he is unable to satisfy himself as to which of them was in such possession of the subject in dispute. 13. Further on behalf of the petitioner the case Khartar Sao V/s. Pradip Singh & Ors., AIR 1952 Pat 234 has been cited to show that in a proceeding u/s 145 Cr.PC. 13. Further on behalf of the petitioner the case Khartar Sao V/s. Pradip Singh & Ors., AIR 1952 Pat 234 has been cited to show that in a proceeding u/s 145 Cr.PC. what the Magistrate has to determine is the fact of actual physical possession from the date of his order under Sec. 145(1) of the Cr.PC. and the Magistrate is not entitled to determine the question of title and pass an order on the footing that possession follows title. It has been held therein that absence of clear specification of the subject of dispute is a vital defect, the subject matter of dispute must be ascertained definitely and described clearly in the order. 14. It has been submitted on behalf of the petitioner that the aforesaid order of attachment and also proceeding u/s 145 of the Cr.RC. is over 1 bigha 8 kathas and 5 dhurs of land, whereas, petitioner had claimed over 4 kathas of land. 15. It appears that over 1 bigha 8 kathas and 5 dhurs of land, there is order of attachment, apparently the petitioner does not claim possession on the entire 1 bigha 8 kathas and 5 dhurs of land. Their claim is only over 4 kathas of land, and it therefore appears that the subject matter of proceeding is not specific so far as petitioners are concerned and the same is vague in nature. With reference to the aforesaid dispute it is submitted that as the land has not been specifically stated in respect of the petitioners as such no such proceeding can be initiated. 16. In this connection, Rajapati V/s. Bachan & Anr., AIR 1981 SC 18 has been cited by the opposite party to show that finding of existence of breach of peace is not necessary at the time when final order is passed nor there is any provision in the Criminal Procedure Code requiring such a finding in the final order. 17. On behalf of the opposite party the case Mathuralal V/s. Bhanwarlal & Anr., 1979 4 SCC 665 being decision of Hon ble Supreme Court has been cited to show that the Magistrate after preliminary order u/s 145(1) of the Cr.PC. making emergency attachment is not precluded from proceeding with the enquiry as to possession under Sec. 145 of the Cr.PC. 18. It has been submitted on behalf of the petitioners that so far as opposite party nos. making emergency attachment is not precluded from proceeding with the enquiry as to possession under Sec. 145 of the Cr.PC. 18. It has been submitted on behalf of the petitioners that so far as opposite party nos. 6 and 7 are concerned, they admittedly did not claim any right, title or interest over the entire disputed lands and there is no dispute interse in respect of possession between the petitioners and the opposite party nos. 6 and 7. Besides the impugned order in respect of the petitioners relating specification of the subject matters of dispute appears to be vague neither specific nor definite in respect of these petitioners, inasmuch as, the petitioners claim only 4 kathas of land, besides in respect of the entire subject matter of dispute other claimants are not the parties. 19. Considering the aforesaid facts and circumstances of the case, the impugned orders at Annexures-9 and 10 on the aforesaid grounds are set aside and quashed so far as the petitioners are concerned. However, opposite party members shall be at liberty to initiate proceedings according to law if there is further any justified occasion for breach of peace with necessary parties specifying the identifiable subject matter of dispute, with specific details without being vague or indefinite. 20. Hence, while it is directed that the impugned orders at Annexures-9 and 10 are set aside and quashed nothing shall prevent the authorities to act according to above observation and guidelines.The application is disposed of.