Ramdeo Rai vs State of Bihar and Others

Narayan Roy, J.—Heard learned Counsel for the Petitioner and also the learned Counsel for the State. However, no one appears on behalf of Respondents No. 4 to 9 despite service of notice on them.

By this application under Articles 226 and 227 of the Constitution of India the Petitioner has prayed for quashing the orders dated 13.2.1991 and 20.9.1993, as contained in Annexures-7 and 9, passed by Respondents Nos. 3 and 2 respectively. Vide order dated 13.2.1991, as contained in Annexure-7, the Respondent No. 3, the Executive Magistrate, has decided a proceeding u/s 145 of the Code of Criminal Procedure against the Petitioner declaring the land in question in possession of the Ram Janki Temple and by order dated 20.9.1993, as contained in Annexure-9, the learned revisional court has dismissed the revision filed by the Petitioner challenging the order as contained in Annexure-7.

Mr. Yogendra Mishra, learned Counsel appearing on behalf of the Petitioner, submitted that the land in question appertaining to Khata No. 724 plot No. 125 with an area of 47 decimal, was. already given in possession of the Petitioner by the Consolidation Authorities u/s 12A of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act) and, in that view of the matter, the learned Executive Magistrate, Respondent No. 3, could have decided the proceeding inconsistent with the order passed by the Authorities under the Act. Learned Counsel further submitted that though this plea was taken by the Petitioner and also by the second party the learned Magistrate has ignored the order passed by the Consolidation authorities and has decided the proceeding contrary to the verdict of the Consolidation Authorities and, therefore, the order passed by the learned Magistrate, as contained in Annexure-7, is wholly without jurisdiction. Learned Counsel further submitted that the revisional court even has not given any finding on the question of law raised by the Petitioner and, therefore, the order, as contained in Annexure-9, is also not sustainable in law. The counsel appearing on behalf of the Petitioner, in support of his contention, has drawn my attention to the order, as contained in Annexure-6, showing that the Petitioner had went in appeal before the Appellate Authority under the Act against order dated 9.1.1989 passed in Case No. 76 of 1988 and the order aforesaid was set aside by the Appellate Authority vide order dated 30.3.1989. Learned Counsel, therefore, submitted that at the face of the order, as contained in Annexure-6, it was incumbent upon the learned Magistrate to decide the proceeding u/s 145 of the Code of Criminal Procedure in conformity with the order passed by the Consolidation Authority and since it has not been done the orders impugned are not sustainable in law. In support of his contention the learned court referred the case of Nagendra Narain Prasad and Ors. v. Lakshman Goswami and Ors. (1984 B.B.C.J. 316) and the case of Subash Prasad Singh and Ors. v. State of Bihar and Ors. (1987 B.L.J. 281 : 1986 PLJR 1176).

I have perused the impugned orders. It appears from the order, as contained in Annexue-7, that in the proceeding u/s 145 of the Code of Criminal Procedure the Petitioner had taken specific plea that the land in question had already been given in possession of the Petitioner by the Consolidation Authorities in exercise of the power under Sub-section (6) of Section 10 of the Act. It appears,, that the learned Magistrate though had noticed the contention of the party but had already ignored the same and has decided the proceeding against the Petitioner. Likewise the revisional court by its order, as contained in Annexure-7, has also not given any finding with regard to the question of law, as referred to above. In the case of Nagendra Narain (supra) a Bench of this Court has held that the Magistrate, while deciding a proceeding u/s 145 of the Code of Criminal Procedure should not ignore the orders passed by the Consolidation Authorities in the Consolidation proceeding which shall become final and was binding in nature. In the case of Subash Prasad Singh and Ors. (supra) a learned single Judge of this Court has taken a similar view as taken by a Bench of this Court, as referred to above, and has held that in view of the decisions rendered in Consolidation proceeding a proceeding u/s 145 should not be allowed to continue.

Having heard counsel for the parties and noticing the legal proposition, as referred to above, in my opinion, the orders, as contained in Annexures-7 and 9, passed by Respondents Nos. 3 and 2 respectively, are wholly without jurisdiction and the same are liable to be quashed.

In the result I allow this application and quash the orders, as contained in Annexures-7 and 9, and the matter is remitted back to the learned Magistrate, Respondent No. 3 for fresh consideration of the matter in accordance with law and in the light of the legal proposition, as referred to above. It goes without saying that the learned Magistrate shall hear the parties and shall proceed in the matter in accordance with law.