Saudagar Singh vs The State of Bihar and Others

S.K. Chottopadhyaya, J.—Heard learned counsel for the petitioner and contesting Opposite Parties. The petitioner being aggrieved by the order of the Revisional authority has moved this Court with a grievance that without considering the evidence adduced by the parties the Revisional court set aside the order of the Executive Magistrate u/s 145 of the Code of Criminal Procedure.

The fact of the cases, which is not in dispute, is that prior to initiation of the proceeding u/s 145 of the Code there was a consolidation proceeding in which the petitioner and Opposite Parties were parties. The consolidation proceeding ended in favour of Opposite Parties. Though it was not averred before the Executive Magistrate that the petitioner has moved before the Director, Consolidation, against the said order in Revision but learned counsel for the petitioner states that the said Revision No. 167/2000 is still pending. Learned counsel for the petitioner admits that this fact was not brought to the notice of the Executive Magistrate in a proceeding u/s 145 of the Code.

The learned Magistrate passed the order in favour of the petitioner declaring his possession. The contesting Opposite Parties being aggrieved moved in Revision and brought before him the fact that in the Consolidation proceeding the order was passed in their favour. They raised the legal point that in such view of the matter, the learned Magistrate has no jurisdiction to pass any order u/s 145 of the Code. This legal aspect could not be controverter by the petitioner before the Revisional court and the learned 1st Additional Sessions Judge noticing various decisions of this Court has allowed the Revision application.

Learned counsel for the petitioner though has raised the point that the Revisional court has not discussed any of the evidence which were noticed by the learned Magistrate but, in my view, the learned Revisional court allowed the Revision on the point of law and, as such, he was not required to go into the details of discussion of evidence and document in this case. The learned Revisional court, it appears, has relied on the decision reported in 1987 BLJ 281, Ram Nihora Singh Vs. Ram Sanjwan Singh in which it has been held that in view of the decision of the Consolidation Authority the order of the learned Magistrate u/s 145 of the Code of Criminal Procedure was without jurisdiction.

Learned counsel for the petitioner, however, strongly relied on the decision of the Full Bench of this Court in the case of Seikh Haidar Zan Vs. Md. Yusuf Ansari and Another, for his submission that when the Revision filed by the petitioner is still pending before the Director, the order passed by the Consolidation Officer will have no effect on the Magistrate in a proceeding u/s 145 of the Code. In this connection he has referred to paragraphs 31, 31, 35 and 42.

Before the Full Bench the following points fell for consideration (1) Whether the consolidation operation comes to an end with the final publication of the record of of right u/s 16 of the Consolidation Act? (2) Whether the bar of Section 10A applies to the exercise of revisional power u/s 35 of the Consolidation Act? and (3) Whether a suit based on title challenging the correctness of the entires in the record of right published u/s 16 of the Consolidation Act is maintainable in the civil court?

In paragraph 30 a question was posed as to whether an authority created by an Act is court as distinguished from a quasi judicial tribunal. What has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a court, in paragraph 31 it has been observed that if the Consolidation authorities were to be given the power to decided the disputes they had to be conferred with the power of summoning witnesses, taking evidence etc. and to be treated as courts. The provisions of Section 37A and Section 37B have to be understood accordingly, in paragraph 35 noticing the Division Bench decision in Junaid Khan Vs. The Sate of Bihar and Others the court observed that the Consolidation authorities, in the strict sense of the term cannot be said to be a court, rather they are tribunals. By legal fiction created by the legislature by employing the expression ''shall be deemed to be courts of competent jurisdiction, the consolidation authorities have been described as courts, but they are at best courts of limited jurisdiction. In paragraph 42, inter alia, it has been observed that the Consolidation Act merely provides a machinery for consolidation of lands and determination of the rights for limited purpose.

I fail to appreciate as to how the ratio of this decision will help the petitioner in holding that the Executive Magistrate has jurisdiction to initiate a proceeding u/s 145 of the Code in the teeth of an order passed by the Consolidation Officer. The decisions cited on behalf of the Opposite Parties before the Revisional Court clearly indicate that in view of the decisions of the Consolidation Officer the very order of the Magistrate would be without jurisdiction. Having considered this aspect of the matter, I am of the view that no case is made out to interfere with the Revisional Court order. This application is, accordingly, dismissed.