Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1415 (PAT)

Ramashish Rai v. State Of Bihar

2012-10-05

SHIVAJI PANDEY

body2012
ORAL ORDER Heard learned counsel for the petitioner, learned counsel for the O.P.No.3 and the learned counsel for the State. 2. In this case, prayer has been made for quashing the entire proceeding of Case No. 774M of 2009 including orders dated 10th February 2010 and 11th December 2010 whereby and whereunder proceeding was initiated under Section 144 of Code of Criminal Procedure (for short, the ‘Code’) and the same was converted under Section 145 and later on the land in dispute was attached under Section 146(1) and 146(2) of the Code by the Sub/Divisional Magistrate, Chakia, East Champaran. 3. From the record it appears that the O.P.No.2 submitted a report dated 15th November 2009 stating therein that the petitioner and others cultivated parts of plot Nos. 9079 and 9080 (measuring 1.96 acres) and had grown sugarcane crops and according to the O.P.No.2, the land in question situated at Husaini Diara which is Gairmajarua land forcibly occupied by the petitioners and others and vide report contained in Annexure-1 he recommended for initiation of proper proceeding. 4. In the report it has been mentioned that some local persons and persons having muscle power have illegally taken possession over the land in question. The report also mentions that after the report of Circle Officer and the Halka Karmchari, notices were issued to the petitioners having illegal occupation. It appears that on the basis of that report, the Sub-divisional Magistrate, Chakia sought a report within three days as to how Prabhunath Pandey and his family members were getting rent receipts relating to the land in question On receipt of this report, a proceeding under Section 144 of the Code was initiated vide order dated 12th December 2009 and the same was converted into a proceeding under Section 145 of the Code vide order dated 10th February 2010. 5. Counsel for the petitioners submits that from the report it appears that the petitioners are in possession of the land in question for years together growing sugarcane crop and there is no such report to show that there was any apprehension of breach of peace and admittedly they have been in possession of the land for last many years. 5. Counsel for the petitioners submits that from the report it appears that the petitioners are in possession of the land in question for years together growing sugarcane crop and there is no such report to show that there was any apprehension of breach of peace and admittedly they have been in possession of the land for last many years. He has further submitted that the land which has been shown as Gairmazarua Malik Mukarir was settled by Bettiah Raj with Pandey family and on the day of vesting of Bettiah Estate had submitted return in favour of Pandey family, since then, they were getting rent receipt. Though they have been in possession of land for many years, these petitioners have purchased the land and having been utilizing the usufructs. He further stated that for initiation of proceedings under Section 144 and 145 of the Code, there should be apprehension of breach of peace and bona fide land dispute. In support of his contention, he placed reliance on a judgment reported in 2004(1) PLJR 650 (Saudagar Prasad Yadav v. Mukesh Yadav). 6. Counsel for the State in contra has disputed the argument and submitted that petitioners are in illegal possession as land in question is Gair-Mazarua land and the land was never settled with the Pandey family and the State of Bihar is in process to cancel the illegally created Jamabandi. He further submitted that the petitioners do not have any chit of paper to show that they do have valid right and title. He has also disputed the filing of return by the Jamindar in favour of Pandey family or in favour of persons in possession of the land and stated that all so called papers are manipulated. 7. Counsel for the O.P.No.3 has also supported the contention of the State of Bihar and stated that the proceeding will not vitiate only because the Sub-Divisional Magistrate has not recorded any finding about the apprehension of breach of peace. 8. Having considered the rival contention of the parties, it is necessary to consider and examine the provisions for initiating the provisions under Sections : - Section 144. Power to issue order in urgent cases of nuisance or apprehended danger. 8. Having considered the rival contention of the parties, it is necessary to consider and examine the provisions for initiating the provisions under Sections : - Section 144. Power to issue order in urgent cases of nuisance or apprehended danger. – (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrates specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte. ……….. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). ………….. Section 145. Procedure where dispute concerning land or water is likely to cause breach of peace. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). ………….. Section 145. Procedure where dispute concerning land or water is likely to cause breach of peace. – (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression ? land or water includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. ………………….. Section 146. Power to attach subject of dispute and to appoint receiver.— (1) If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Sec.145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. 9. 9. From the provisions of Section 144 of the Code it appears that if in the opinion of the District Magistrate or the Sub-divisional Magistrate or any Executive Magistrate, there is an opinion that there was likelihood of breach of peace and it is required to prevent the same, in that circumstance the proceeding can be initiated, the opinion of Magistrate must be based on material such as, the report of Police Officer or upon such information that the dispute is likely to cause breach of peace concerning land or water or otherwise within the local jurisdiction, he can pass such order. It is clear from reading Section 144 preceding initiation of proceeding, it is required, there should be opinion of Magistrate of likelihood of breach of peace. 10. On examination of Section 145 of the Code, it appears that there should be bona fide land dispute and there should be apprehension of breach of peace, the Magistrate must be satisfied, both grounds exist and only thereafter the Magistrate can initiate or convert the proceeding under Section 145 of the Code. 11. The Hon‘ble Supreme Court while considering the provisions of Section 145 of the Code in the case of R.H. Bhutani v. Miss. Mzani J. Desai and others, AIR 1968 SC 1444 has laid down the guidelines which is as follows: ? “The satisfaction under sub S(1) is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognized rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of the material for his satisfaction. The language of the sub-section is clear and unambiguous that he can arrive at his satisfaction both from the police report or =from other information‘ which must include an application by the party dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. 12. In another case of Rajpati vs. Bachan and another, AIR 1981 SC 18 the Hon‘ble Supreme Court has also considered the parameter for initiating the proceeding under Section 145 of the Code and observed as follows: ? 12. In another case of Rajpati vs. Bachan and another, AIR 1981 SC 18 the Hon‘ble Supreme Court has also considered the parameter for initiating the proceeding under Section 145 of the Code and observed as follows: ? “The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied on these two conditions, the section requires him to pass a preliminary order under sub-s (1) and thereafter to make an enquiry under sub-section (4) and pass a final order under sub-s (6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under S.145 is limited to the question as to who was in actual possession on the date of preliminary order irrespective of the rights of the parties… The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate. 13. This Court has also considered the judgment in the case of Saudagar Prasad Yadav (supra) where the Court has also endorsed the same view and held that the proceeding can only be initiated provided there is satisfaction of the Magistrate for apprehension of breach of peace on the basis of Police report or otherwise. 14. In this view of the matter it appears from the record that the report of the Magistrate itself shows that they are in possession of the property although they have been shown in illegal possession and have been growing the crop since long and both the impugned orders do not show the satisfaction of the Magistrate about apprehension of breach of the peace. Hence, this Court finds that the proceeding u/s 144 and 145 of the Code is illegal and cannot be allowed to proceed as they do not satisfy the twin requisites as stated hereinabove. As there was jurisdictional error at the time of initiation of the proceeding, this Court in exercise of inherent power cannot allow the proceeding to proceed. Accordingly, both the impugned orders are quashed and this petition is allowed. As there was jurisdictional error at the time of initiation of the proceeding, this Court in exercise of inherent power cannot allow the proceeding to proceed. Accordingly, both the impugned orders are quashed and this petition is allowed. However, the State of Bihar is of the view that the settlement was not made by the Bettiah Raj in favour of petitioners and they are claiming possession of the same without any basis. It will have liberty to initiate a proceeding against the petitioners and can adopt a legal course for eviction of petitioners and others from the illegal possession over the property in question.