J. Narain, J.

This application is directed against the order passed under section 144 (1) of the Code of Criminal Procedure (herein after referred to as the 'Code') with respect to plot Nos. 729, 730, 731 and 738 of Khata No. 143 situate in village Debiana within police Station Nirsa District Dhanbad.

2. Durga Boka Pahari Colliery where in are situated the above plots, originally belonged to Lakshmi Narain Singh and Sagar Narain Singh. They granted lease of both surface and under ground right to Shri Gouri Kanta Mukherjee as Shebait of Durga-Mata. Thereafter Narain Mukherjee came to possess and work the colliery till he sold it to the petitioner by means of a registered sale deed dated the 27th of August, 1960. There was a proceeding under section 145 of the Code in respect of 150 bighas of land consisting of some of the plots in dispute and the possession was found with the petitioner. This order was affirmed with slight variation by the High Court on the 15th of January, 1973. Then a proceeding under section 144 of the Code was commenced on the 28th of February, 1974 against the petitioner and others in respect of the subject of dispute including plot no. 729. It was made absolute against the petitioner by order dated the 12th of August, 1974. The petitioner on, the 24th of January. 1974 filed Title Suit No. 5 of 1974 against the Coal Mining authorities for a declaration that the management of the colliery has not vested in Government and for an Injunction restraining the defendants from interfering with the possession of the petitioner. An injunction was granted and on appeal the order was upheld by the District judge on the 31st of May, 1974. Civil Revision against this order is pending in this Court. Another proceeding under section 144 of the Code was initiated on the 29th of January, 1975 (M. P. Case No.83 of 1975). It was stated therein that the report of the Local Officer of Nirsa Police Station showed that the petitioner was encroaching upon Government land appertaining to plot Nos. 729, 730, 731 and 738 by conducting mining operations and there was apprehension of the breach of the peace and the petitioner was asked to show cause. By order dated the 3rd February, 1975 the learned Magistrate dropped the proceeding saying that the proceeding was initiated on the report of the Officer Incharge of Nirsa Police Station but it appeared from his report dated the 3rd February, 1975 that action under section 144 of the Code had not been recommended by him. Report of the Officer Incharge showed that the petitioner used to get ready to commit breach of the peace at the time of realisation of royalty and as such the learned Sub-Divisional Magistrate called for a report whether there was any apprehension of breach of the peace at the bands of the petitioner at the time of realisation of royalty. No report from the Officer Incbarge of the Police Station was received. Instead there was a report of the Anchal Adhikari upon which the present proceeding, on the 4th of February, 1975, was commenced. The report speaks of illegal working of mines and future states that plot no. 729 which is recorded as bed of Pusai river is a public property used as a 'cremation ground and that as a result of illegal extraction of coal there is likelihood of communal tension. It does not say of apprehension of the breach of the peace at the time of realisation of royalty. On this report the learned Sub-Divisional Magistrate, as stated above, commenced the proceeding and while doing so stated that the petitioner had been encroaching upon Govt. lands bearing plot Nos. 729, 730, 731 and 738 by illegally starting mining operation and that immediate preventive measures were necessary to be taken and, accordingly restrained the petitioner and asked him to show cause by a certain date. It is against the above order that the present application is directed.

3. In my opinion the whole proceeding is misconceived and it is an abuse of the process of law in as