Gulam Nabi Sardar vs Mahendra Bar

Guha, J.—This is a revisional application by the second party for setting aside an order passed by the Sub-divisional Magistrate of Basirhat on December, 29, 1955, u/s 145 of the Code of Criminal Procedure attaching the disputed land and appointing the Government Tahsildar, Kamarpara, as a Receiver. In order to appreciate the contentions urged before us on behalf of the Petitioners it is necessary to state a few facts. On June 22, 1955, an application was filed by the present opposite party before the Subdivisional Magistrate, Basirhat, for drawing up proceedings u/s 144 of the Code of Criminal Procedure against the present Petitioners in respect of a 20-bigha plot of land in Mouza Pathankhali, P.S. Sandeshkhali. An order u/s 144 of the Code of Criminal Procedure was passed on the Petitioner and proceedings were drawn up accordingly. On July 12, 1955, however, on the objection of the present Petitioners the proceedings were rescinded on the ground that the name of Mouza Pathankhali had been scored through and the name of Mouza Kamarpara inserted without authority in the notice that was actually served on him. On November 8, 1955, a fresh petition was filed by the present opposite party before the learned Magistrate against the present Petitioners praying for an order u/s 144 of the Code of Criminal Procedure on the allegation inter alia that there was an apprehension of imminent breach of the peace in respect of the lands mentioned in the petition. The Petition mentioned two plots of land each measuring 10-bighas in Mouza Kamarpara. P.S. Sandeshkhali. Thereupon on the same day, the learned Magistrate referred the Petition to the Chairman, Shambhunagar Bhag Chas Board, for enquiry and report by November 28, 1955. No report was, however, submitted by the Chairman, Bhag Chas Board, by November 28, 1955, and on that day the learned Magistrate passed the following order:

Issue an order of injunction u/s 144 of the Code of Criminal Procedure restraining both the parties from going upon the land. Cause, if any, may be shown by 20th December, 1955.

In the order-sheet of the same day, the Magistrate stated inter alia that he was satisfied that there was an apprehension of the breach of the peace and immediate prevention was necessary. Curiously, however, though the petition was in respect of two plots of land each measuring 10-bighas of Mouza Kamarpara, in the proceeding that were actually drawn up on November 28, 1955, only one plot of land, namely, the first plot, was mentioned in the description of land. The error was pointed out a few days later by the present opposite party by a Petition in which it was stated that due to inadvertence in the proceedings only one Schedule land had been mentioned and another had been left out. It appears from the record that the learned Magistrate put off passing orders on this petition from day to day. Finally, this Petition was ordered to be put up on December 29, 1955. On December 20, 1955, the present Petitioner filed a Petition before the learned Magistrate praying for rescinding the order u/s 144 which had been passed on November 28, 1955, mentioning inter alia that a specific case was pending in connection with the disputed land. Thereupon on December 21, 1955, the learned Magistrate heard the lawyers of both sides and passed the following order:

There is some dispute as to who grew the paddy on the land. Send it to Government Tashildar at Pathan Khali for immediate enquiry and report by 28th December, 1955.

The Tahsildar submitted his report on December 27, 1955, stating that he went to the disputed land with both the parties, examined witnesses and came to the conclusion that the present Petitioners had actually grown paddy on the disputed land. On December 28, 1955, a report was also received from the Chairman, Bhag Chas Board, in pursuance of the order which had already been passed by the learned Magistrate, on November 28, 1955. This report is dated December 18, 1955, though it appears to have been received by the learned Magistrate on December 28, 1955. In this report it was stated that the present Petitioners might have cultivated some portions of the land while the present Opposite party might have cultivated the balance of land afterwards. The report concluded with the observation that "at present the situation "of the locality is very tense and breach of peace is apprehended "at the time of harvesting". It may be repeated that the date of this report is dated December 18, 1955. On December 28, 1955, the learned Magistrate had thus two conflicting reports before him, one by the Chairman, Bhag Chas Board and another by the Government Tahsildar. He heard the lawyers of both the parties that day and on the following day, that is, the 29th of December, 1955, he passed an order stating inter alia that he had two conflicting reports before him, that he could not understand how the present Petitioners could go upon the land when the first party, namely, the present Opposite party, was the bargadar on the land and was not evicted and prima facie, he found that possession was very much disputed and no definite conclusion could be arrived at as to who grew the paddy. He then passed the following order:

I therefore convert it into a proceeding u/s 145, Code of Criminal Procedure. The land is attached (apparently u/s 145(4)) and Government Tashildar, Kamarpara, is appointed to be receiver.

It is against this order that the Opposite parties-Petitioners have come up.

On their behalf two points have been urged before us. The first point is that the learned Magistrate has erred in law in converting the proceedings to one u/s 145 of the Code of Criminal Procedure in respect of both the plots when the original proceedings u/s 144 of the Code of Criminal Procedure was drawn up in respect of one plot and there was no material on the record to justify drawing up of the proceeding in respect of the other plot. So far as this point is concerned, I am of opinion that there is no real substance in it. It will be clear from the detailed narration given above that in the proceedings which were actually drawn up on November 28, 1955, by the learned Magistrate one plot, namely, the second plot mentioned in the Petition, dated November 8, 1955, had been left out apparently through inadvertence as was pointed out by the present Opposite parties in their subsequent Petition upon which the learned Magistrate deferred passing orders from day to day as has been pointed out before. In any case, it is clear further from the order passed by the learned Magistrate on December 29, 1955, directing the drawing up of proceedings in respect of both the plots that he realised that there had been some mistake in the actual drawing up of the proceedings u/s 144 on November 28, 1955. It is abundantly clear further from the order recorded by the learned Magistrate in the order-sheet on November 28, 1955, that on that day he could have possibly no reason to distinguish between the two plots and what he intended was that proceedings should be drawn up in respect of both the plots. In the circumstances of the present case when on December 29, 1955, the learned Magistrate passed an order converting the proceedings into one u/s 145 of the Code of Criminal Procedure what he actually intended and what he actually carried out was that the entire lands, namely, both the plots-plots Nos. 1 and 2 should be the subject-matter of the proceedings u/s 145 of the Code of Criminal Procedure and not the first plot only. There is nothing in the report of the Chairman, Bhag Chas Board, to indicate that it was only the first plot that was the subject-matter of dispute between the parties. There are also other materials on the record to indicate that the dispute between the parties was in respect of two plots, 10-bighas each and not in respect of one plot only of 10-bighas. In the circumstances, the learned Magistrate cannot be said to have acted beyond his powers in directing proceedings to be drawn up in respect of both the plots. There was ample material on the record to justify in the circumstances of the present case, the drawing up of the proceedings u/s 145 of the Code of Criminal Procedure in respect not only of plot No. 1, but also of plot No. 2. This disposes of the first point urged before us on behalf of the Petitioners.

The second point that has been urged before us on behalf of the Petitioners is that the order of the learned Magistrate was illegal and without jurisdiction inasmuch as there was no finding in the order itself that there was any apprehension of the breach of the peace at the date of the passing of the order. The substance of the order recorded by the learned Magistrate in the order-sheet of December 29, 1955, has been adverted to already. The order that was actually drawn up on the same day u/s 145 of the Code of Criminal Procedure starts as follows:

Whereas it has been made to appear before me from the Petition of Shri Mohendra Bar of Kamarpara, P.S. Sandeshkhali, and after hearing of the lawyers of both parties and after perusal of the documents that dispute is likely to cause a serious breach of the peace existing between the parties named in the margin concerning possession of the lands.

Now it is to be seen whether there was really anything illegal in the action taken by the learned Magistrate. On behalf of the present Petitioners, our attention was drawn to three cases, namely, Nityanand Roy v. Paresh Nath Sen I.L.R.(1905) 32 Cal. 771, Mohesh Sowar v. Narain. Bag I.L.R.(1900) 27 Cal. 981, and a recent decision, namely, Khudiram Mandal v. Jitendra Nath Mandal (1952) 56 C.W.N. 608. It is necessary to make a few observations regarding these cases though it is hardly necessary to go into the matter in detail because this question has been the subject-matter of discussion in many cases in different High Courts. Reference may in this connection be made to the Full Bench decision of the Allahabad High Court in the case of Kapoor Chand v. Suraj Prasad ILR (1933) 55 All. 301 and a Special Bench decision of the Patna High Court in the case of S.M. Yaqub and Others Vs. T.N. Basu and Another, . So far as the Allahabad and Patna decisions are concerned, it is apparent that they take a view different from that held in the two early decisions of our High Court, namely, the decision in the case of Nityanand, Roy v. Paresh Nath Sen (Supra) and Mohesh Sowar v. Narain Bag (Supra). The matter was discussed in great detail in the illuminating Order of Reference in the Full Bench of our High Court in the case of Khosh Mahomed Sirkar v. Nazir Mahomed ILR (1905) 33 Cal. 352. It is also clear from the case of Khudiram Mandal v. Jitendra Nath Mandal (Supra) that it was the view of the referring Judges, namely, Rampini and Mookerjee, JJ., in the Order of Reference in Khosh Mahomed Sirkar''s case that found favour with the Court. In Khudiram Mandal''s case it was contended inter alia that the question of compliance with the requirements of Section 145(2) was a question of jurisdiction because unless the Magistrate took the first step in the only manner authorised by the Sub-section, the jurisdiction to proceed further did not arise. It was pointed out in Khudiram Mandal''s case that the view expressed by Rampini and Mookerjee, JJ., namely, the referring Judges in the case of Khosh Mahomed Sirkar v. Nazir Mahomed (Supra), was clearly and definitely against the contention put forward in the above passage. In Khudiram Mandal''s case, the learned Chief Justice observed inter alia. "In my opinion, the view taken by the learned Judges is clearly the right view". In the case of Khosh Mahomed Sirkar v. Nazir Mahomed ILR (1905) 33 Cal. 352, the initiatory order u/s 145(1) of the Code of Criminal Procedure was drawn up in the following terms:

Whereas it appears from the Police report, dated 23rd January, 1905, that there exists a dispute which is likely to cause a breach of the peace.

In the initiatory order, further details were not given as-regards the grounds on which the learned Magistrate was satisfied. The Full Bench agreed with the referring Judges that even though the grounds upon which the learned Magistrate was satisfied that a dispute likely to cause a breach of the peace existed had not been stated expressly the order was not bad. The referring Judges in that case were clearly of the opinion that the decisions of this Court in the case of Nityanand Roy v. Paresh Nath Sen (1905) ILR 32 Cal. 771 and Mohesh Sowar v. Narain Bag I.L.R.(1900) 27 Cal. 981, which have been relied upon by the learned advocate for the Petitioners were not correct. There are various decisions of this Court which have taken a view similar to that of the learned referring Judges in Khosh Mohammad Sirkar''s case. The matter has been dealt with in very great detail in the Order of Reference in Khosh Mahomed Sirkar''s case. It will be sufficient for our present purposes, if a brief quotation is made from that Order of Reference:

When, therefore, an initial order has been recorded without a statement of the reasons and has been duly served upon the parties, if they find any difficulty in preparing their defence by reason of this vagueness in the order, it is open to them to apply to the Magistrate for a statement of the grounds or to ask him to amend the order. If, however, the parties do not feel any difficulty owing to the omission of the grounds in the initial order, and adduce evidence in support of their respective cases, it is difficult to see upon what principle it can be asserted that the defect in the order is an illegality, which vitiates the whole of the proceedings.

It has been pointed out again and again that the matter is not really a question of jurisdiction at all. In the present case, the parties were litigating before the learned Magistrate in regard to the disputed lands. It is abundantly clear at least from one report, namely, the report of the Chairman, Bhag Chas Board, that the situation in the locality only a few days before the order passed on December 29, 1955, was "very tense" and that a breach of the peace was apprehended at the time of harvesting. If, in these circumstances, the learned. Magistrate who had all these materials before him did not mention in his order, dated December 29, 1955, recorded in the order-sheet about the likelihood of any imminent breach of the peace, that cannot deprive the learned Magistrate of his jurisdiction to draw up proceedings u/s 145 of the Code of Criminal Procedure. In any case, it is to be noticed that in the initiatory order that was actually drawn up on that day, it is specifically mentioned that it had been made to appear before him from the petition of Shri Mohendra Bar of Kamarpara, P.S. Sandeshkhali and after hearing of the lawyers of both parties and after perusal of the documents that dispute likely to cause a serious breach of the peace existed. Though the grounds were not set forth very precisely in this initiatory order that could not, in my opinion, invalidate the proceedings in view of the decisions to which reference has been made. It will be noticed that the order in the present case as recorded by the learned Magistrate on December 29, 1955, was much more elaborate than in the case of Khudiram Mondal v. Jitendra Nath Mandal (1952) 56 C.W.N. 608, a case to which reference has been made already. If really the present Petitioners had any grievance on the score of vagueness, it was open to them to take such steps as were necessary by approaching the learned Magistrate as was pointed out by the referring Judges in the case of Khosh Mahomed Sirkar v. Nazir Mahomed ILR (1905) 33 Cal. 352. It may also be pointed out that if the present Petitioners can satisfy the learned Magistrate that in so far as at least one of the plots is concerned, there is no apprehension of any breach of the peace, there is nothing to prevent them from approaching the learned Magistrate for taking appropriate action u/s 145(5) of the Code of Criminal Procedure. According to that Sub-section, nothing in Section 145 shall preclude any party from showing that no such dispute likely to cause a breach of the peace exists or has existed and in such a case the Magistrate shall cancel his order. Considering all the circumstances of the present case, therefore, I fail to see that the present Petitioners have any real grievance.

I would accordingly refuse to interfere with the order passed by the learned Magistrate and discharge the rule.

Mitter, J.

I agree.