Bharat Prasad & Ors vs State Of Bihar & Ors

passed under Section 482 of the Code of

Criminal Procedure is impugned before this

Court.

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3. By that order, the High Court refused to quash

the order dated 10.2.2005 passed by 3rd

Additional Sessions Judge, Motihari in

Cr.Revision No. 326 of 1992 whereby the order

dated 27.7.1992 passed by the Executive

Magistrate, Raxaul in case No.548(M) of 1991

was confirmed.

4. By the said order dated 27.7.1992, the

Executive Magistrate declared possession in

favour of the opposite parties in a proceeding

under Section 145 of the Code. The relevant

portion of the order is:-

"I declare the possession of the first side on the said land until and unless they are dispossessed by the competent Court and the opposite side is ordered that they shall not interfere in the peaceful possession of the first side".

5. The material facts of the case are as under:

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6. The land in question is 1 Katha 8 dhura out of

plot No. 1853 under Khata No. 289 in village

Gambharia Kala, P.S. Darpa, District Motihari.

The land originally belonged to one Ram Lagan

Tiwari of village Amnaur of District Chapra.

7. The case of the appellants is that one Ram

Lagan Tiwari mortgaged the said land to one

Jagdish Prasad Singh son of Tapasi Rai of

village Bhopatpur Bajhia, P.S. Keshariya,

District East Champaran on 21.7.1920 for a

period of 60 years.

8. It is further contended that some time on or

about 9.11.1943, Ram Lagan Tiwari sold the

land to one Jamadar Rai @ Jamadar Bhagat of

Village- Lahadia, P.S. Darpa, District East

Champaran by a registered sale deed. Neither

Jamadar Rai @ Jamadar Bhagat nor Ram Lagan

Tiwari redeemed the mortgage and as a result

whereof Jagdish Prasad Singh continued in the

possession over the disputed land. The said

3 Jagdish Prasad Singh, the mortgagee gave the

said agricultural land to the appellants and

his brothers to cultivate as Bataidars.

9. The appellant contends that he along with Jai

Bihar Sah took possession of the said and

cultivated it as Bataidar.

10. It is further contended that on 18.8.1977, the

said Jagdish Prasad Singh tried to dispossess

the appellants and Jai Bihar Sah from the

Batai Land whereupon the appellant No.2 -

Lakshman Prasad filed Sikmi Batai Case No. 480

of 1975 and Jai Bihar Sah filed Sikmi Batai

Case No.257 of 1976 before the L.R.D.C. Both

the Sikmi Batai Cases were decided against

Jagdish Prasad Singh and in favour of the

appellants.

11. The concluding portion of the said order as

follows:

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" ....From the statements of different persons and inquiry report it has become undisputed that Sri Lakshman Prasad Sah, Batayidaar along with his family members had been cultivating this land for more than 30 years as batayidaar and distribute the share of the crops to Sri Jagdish Prasad Sah the remaining 1 bigha of land but till today 2 bighas and 2 katthas of land are in his peaceful possession and legally Sri Lakshman Prasad Sah has got Sikri right over the 2 bigha and 2 katthas of land which is equivalent to acre and decimel...".

12. Against the said order no appeal was

preferred. The said order has become final.

13. It is also the appellants' case that then

Lakshman Prasad and his two brothers, namely,

Ram Chandra Prasad and Bharat Prasad separated

from each other and partitioned the entire

5 land including the land in question among

themselves.

14. It is alleged that then on 26.6.1979, Vendee

of the original landlord Ram Lagan Tiwari,

i.e. Jamadar Rai @ Jamadar Bhagat sold the

entire land in favour of Dharaman Prasad and

his three sons, namely, Shesh Nath Prasad,

Pramod Kumar and Binay Kumar by a registered

sale deed on 26.6.1979.

15. It is alleged that on 26.12.1981, Laxman

Prasad executed one "Ezabnama" for Sikmi Batai

in favour of Dharaman Prasad and his sons.

16. Thereafter, a proceeding under Section 144 of

the Code was initiated and the Sarpanch of

Gamhari Kala Panchyat recommended initiation

of such proceeding only on 2 Bigha,2 Katha

land against the appellants out of total land

of 3 bigha,22 Katha,5 Dhurs.

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17. However, the said proceeding was dropped by an

order dated 9.1.1984 passed by the learned

Sub-Divisional Magistrate in regard to some

portion of the land and it was directed that

the proceeding will be continued only on 1

Bigha, 8 Katha land and the proceeding under

Section 144 of the Code was converted into

Section 145 of the Code.

18. In the said proceeding, the appellants claim

to have filed their show cause stating the

history starting from 1920.

On the basis of police report, a separate

proceeding under Section 144 of Cr.P.C was initiated

which was converted into a proceeding under Section 145

of Cr.P.C and in the said proceeding the respondents

herein filed Criminal Revision No.333 of 1984 before

the Patna High Court and the Hon'ble High Court

rejected the same.

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19. It appears that various proceedings under

Section 144 of Cr.P.C were initiated between

the parties. Ultimately appellants claim to

have filed Bataidari (Tenant) Case No.10 of

1995-96, 11 of 1995-96 and 12 of 1995-96

before the appropriate authority. All the

cases were heard together and after hearing

the parties Circle Officer came to a finding

that appellants are the tenant in respect of

the disputed land and directed them to deposit

money for creating Zamabandi in their name and

which they did. In support of this assertion,

the appellants were referring to two orders

dated 13.06.1995 and 15.10.1995, issued in

Bataidari Case No.10 of 1995-96. In view of

such proceeding, the respondents herein filed

Criminal Miscellaneous Case for quashing those

proceedings and various criminal proceedings

were initiated between the parties.

Ultimately before the Court of Third

Additional Sessions Judge (E.C.) Motihari, the

criminal revision was filed by the appellants

8 challenging the order dated 27.07.1992 passed

by Executive Magistrate and the said criminal

revision was dismissed. Challenging that

order, the petition under Section 482 of

Cr.P.C was filed before the High Court. The

order of the High Court which was passed on

that 482 petition has been challenged before

this Court.

20. It appears from the impugned order that the

High Court did not consider the effect of the

relevant provisions of Bihar Tenancy Act

(hereinafter referred "to the said Act") and

the ambit of Section 145 of the Criminal

Procedure Code. It has been held in Badri

Yadav Vs. Sat Narain Das and others - 1993

Supp. (2) SCC 347 that whether a person is

Bataidar or not rests on a "pure factual

investigation and the record of the case".

21. In the instant case clear finding has been

arrived at that the appellants are Bataidars.

9 Such a finding has been arrived at under the

provision of the said Act which is a special

law. The provisions of Section 48E of the

said Act provides for a complete machinery for

enquiry into the rights of a Bataidar and also

provides for some protection. Section 49C

also imposes some restriction on the transfer

of such rights which is created in favour of

the tenants. So provisions of Section 48E and

those of Section 49C supplement each other.

22. The legislative purpose in enacting the

provisions of Section 48E of the said Act is

to ensure that the disputes between raiyats

and under-raiyats are settled as amicably as

possible and for that, detailed machinery has

been provided under Section 48E of the said

Act. In continuation of such legislative

scheme Section 48E (13) has provided as

follows:

"Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject matter 10 of a dispute after a proceeding is initiated under sub-section (1) by the Collector:

Provided that nothing in this sub- section shall be deemed to affect the power of a Criminal Court to take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceeding by the Collector."

23. In this context Section 5 of the Code of

Criminal Procedure may also be noticed and

which provides as follows:

"Nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."

24. It cannot be doubted that said Act is a

special and local law in the sense it is

confined within the State of Bihar. If we

read the provisions of Section 48E (13) of

said Act as against Section 5 of the said

Code, it will be clear that the effect of

Section 5 of the Code of Criminal Procedure is

11 to render the provisions of the Code of

Criminal Procedure inapplicable in respect of

all matters covered by such special law. [See

Ajmer Singh and Others Vs. Union of India and

Others - 1987 (3) SCC 340 (para 7 page 343)].

25. Similarly, construing Section 5 of the Code,

the Constitution Bench of this Court held in

Maru Ram Vs. Union of India and others [(1981)

1 SCC 107]:

"If a special or local law exists covering the same area, this latter law will be saved and will prevail."

26. Sub-section 13 of Section 48E of the said Act

makes it clear that no Civil or Criminal Court

shall have any jurisdiction over the subject

matter of a dispute after a proceeding is

initiated under sub-section (1) of the

Collector.

27. In the instant case, admittedly a proceeding

under Section 48E was initiated and it

terminated in favour of the appellants holding

12 their rights as Bataidar. The said

adjudication has become final.

28. However, sub-section 48E (13) has a proviso to

the effect that nothing in this sub-section

shall be deemed to affect the power of a

Criminal Court to take such action as may be

necessary for preventing breach of the peace

pending the final disposal of the proceeding

by the Collector.

As in this case the proceeding under Section 48E

has been finally decided, this proviso cannot be

pressed into service.

29. Here, after the proceeding has become final

and the rights of the appellants have been

declared, repeatedly provision of Sections 144

and 145 of the Cr.P.C have been invoked to

disturb the rights which the appellants have

acquired in the Bataidari proceedings. But the

main provisions of Section 48 (13) have been

13 enacted to protect the Bataidari rights of the

parties and that is why it provides for an

exclusion of the power of the Civil and

Criminal Court over such rights. This is

keeping in tune with the principle of

distributive justice. Similar provisions

have been made in various land reforms laws of

different States. The Courts while construing

the provisions of such socio economic

legislation must interpret them in a manner

which furthers its purpose rather than

frustrates it.

30. The only argument of the respondents is that

some of the appellants by Ezabnama gave away

the rights in favour of the respondents. It

may be noted that under Section 49C of the

said Act restrictions are imposed on transfer

of rights by under raiyat and if such a

transfer is made, that is void. Apart from

insisting on such transfer, which apparently

is violation of the statute, no other argument 14 was made by the learned counsel for the

respondents.

31. In this case, proceeding of Bataidari under

Section 48(1) (E) was over and there was no

pending proceeding. Therefore, proviso of

Section 48E (13) is not attracted. In view of

the main provision in Section 48(13)

of the said Act jurisdiction of Criminal Court

cannot be exercised in view of the express

ouster.

32. In the case of Kunjbihari Vs. Balram and

another - (2006) 11 SCC 66, a three-Judge

Bench of this Court has held where rights of

the parties have already been adjudicated upon

by a different forum, the parties must respect

that finding. In such a situation proceeding

under Section 145 is not to be initiated to

disturb the finding. In that case the High

Court in a proceeding under Section 482 of

Cr.P.C refused to quash the 145 proceeding.

15 The same thing has been done here. However,

this Court allowed appeal by setting aside the

High Court's order as also directing that

Section 145 proceeding be dropped.

33. In this case, this Court is of the opinion

that if the respondents are aggrieved by the

findings reached in the Bataidari proceeding

they have the statutory right of the appeal to

be exercised according to law. Without doing

that the affect of Bataidari proceeding cannot

be scuttled with the subterfuge and juggle of

144/145 proceedings. In the facts of this

case, such a proceeding is an abuse.

34. For the reasons discussed above, we find that

the High Court has not approached the legal

issues involved in this case in their correct

perspective nor considered the affect of

Section 48E or sub-section (13) of the said

Act on a 145 proceeding.

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35. Therefore, we quash the High Court's order and

also the 145 proceeding. The appeal is

allowed. There shall be no order as to costs.

.......................J.

(Dr. ARIJIT PASAYAT)

.......................J. New Delhi (ASOK KUMAR GANGULY) May 06, 2009

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