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1995 Supreme(Cal) 457
HIGH COURT OF CALCUTTA
R.P. Gupta, J.
Sukumar Maiti & Ors.
vs.
Bishnu Pada Das Adhikary & Ors.
criminal revision No. 2655 of 1991
Decided on : December 19, 1995
Advocate Appeared:
A.K. Roy, Nirmalendu Patra for the petitioners;
Tapas Chatterjee for the opposite party No.1.
An order of attachment and appointment of Receiver under Sections 145 and 146 Cr.P.C. should not be passed without considering the facts and circumstances of the case, including the observations of various courts regarding the existence of bargadars in the disputed plots of land and the pendency of proceedings for vesting of land in the State.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 145, 146 - WEST BENGAL LAND REFORMS ACT - SECTION 21(3) - BARGADARS IN POSSESSION - ORDER OF ATTACHMENT AND APPOINTMENT OF RECEIVER - ILLEGAL - REFERENCE TO REVENUE AUTHORITIES UNDER SECTION 21(3) OF THE WEST BENGAL LAND REFORMS ACT - NECESSARY.
Fact of the Case:
The petitioners, who are bargadars, challenged the order of the Sub-Divisional Executive Magistrate (SDEM) appointing a Receiver in respect of lands shown in the schedule under Section 146(2) of the Criminal Procedure Code (Cr.P.C.) and attaching the said lands until further orders as per the provision of Section 146(1) Cr.P.C. The petitioners claimed that they were in possession of the lands as bargadars and that the lands had already been vested in the State by the competent authority.
Finding of the Court:
The court found that the SDEM had failed to consider the facts and circumstances disclosed in the case, including the observations of various courts regarding the existence of bargadars in the disputed plots of land and the pendency of proceedings for vesting of land in the State. The court held that the order of attachment and appointment of Receiver was illegal and liable to be set aside.
Issues: 1. Whether the SDEM was justified in passing an order of attachment and appointment of Receiver without considering the facts and circumstances of the case, including the observations of various courts regarding the existence of bargadars in the disputed plots of land and the pendency of proceedings for vesting of land in the State? 2. Whether the SDEM should have referred the matter to revenue authorities concerned under Section 21(3) of the West Bengal Land Reforms Act read with Section 18 of that Act, considering that the question involved was as to who are the bargadars?
Ratio Decidendi: 1. The procedure of attachment and appointment of Receiver in a proceeding under Sections 145 and 146 Cr.P.C. is not meant to disturb existing peaceful possessions or existing peaceful cultivations. 2. The Magistrate passing the order has to apprise himself with prima facie facts of possession. 3. The Magistrate could not find that the lands were not at all in possession of bargadars or who were prima facie in possession. 4. The Magistrate only expressed the view that the names of the bargadars were not clear. 5. The Magistrate should have referred the matter to revenue authorities concerned under Section 21(3) of the West Bengal Land Reforms Act read with Section 18 of that Act, considering that the question involved was as to who are the bargadars.
Final Decision: The court partly allowed the revision petition, setting aside the order of attachment and appointment of Receiver. The court directed the parties to appear before the concerned SDEM on a specified date.
R.P. Gupta, J.:
1. This revision petition is directed against order dated 7.12.91 passed by Sub-Divisional Executive Magistrate, Contai in Miscellaneous Case No. 262 of 1991. By that order, the learned SDEM appointed B.L. and L.R.G. Contai (1) as Receiver in respect of lands shown at para 'Ka', 'Kha', 'Ga' and 'Gha' of the schedule, under s. 146(2) of the Criminal Procedure Code and attached the said lands until further orders as per provision of s. 146(1) Cr.P.C.
2. The petitioners, who are 36 in number, claim that they are bargadars of this land and in its possession and cultivation. They claim that the lands detailed in Paras 'Ka', 'Kha', 'Ga' and 'Gha' of the schedule have already been vested in the State by the competent authority and these petitioners are in possession as bargadars and they are so recorded in record of rights, that the opposite party No. 1 was not in possession of this land either before vesting or after the order of vesting while the petitioners are in possession as bargadars since before the order of vesting. So, the order of vesting does not affect the rights of these petitioners. It was urged that respondent No.1 had filed a civil suit No. 249 of 1984 in respect of these lands and prayed for appointment of a Receiver. The civil court of Munsif rejected their prayer.
3. Respondent No.1 approached the District Judge in appeal, but there also they failed. Both these courts observed that the petitioners are bargadars. Ultimately this suit was dismissed for non prosecution. The Respondent No.1 filed a writ petition being C.R. No. 14805(W)-14807(W) of1979. A Single Bench of the High Court passed an order of injunction against the present petitioners in favour of respondent No.1 but the petitioners took an appeal to a Division Bench of the Court. It was FMAT No. 2867-2869 of 1986. The Division Bench vacated the order of injunction against the petitioners. The respondent No.1, however filed another writ petition No. C.R. 9544(W) of 1984 and a Single Bench of this court appointed a Receiver in respect of the land in question, but on appeal, by petitioners to a Division Bench of this court, the Division Bench in FMAT No. 3812 of1884 set aside the order of the Single Bench on 29th Nov., 1984. It is asserted that the respondent no. 1 had moved an application under s. 144 Cr.P.C. before the Sub-Divisional Executive Magistrate who converted the proceedings to s. 145 Cr.P.C. and passed the impugned order. It is asserted that the Sub-Divisional Executive Magistrate has failed to consider the facts and circumstances as disclosed above while passing the impugned orders, by relying on a report of officer-in-charge of Contai police station and by not referring the case under s. 21(3) of the West Bengal Land Reforms Act to a Revenue Officer as per s. 18 of that Act.
4. I have heard the learned counsel for both sides. It may be noticed that respondent No. 1 is not a party, a single juristic person. In fact, he has been made party in his own capacity and as Shabait of three deities, namely, Shri Iswar Madan Gopal, Madan Mohan Jew Thakur, Nare Singh Jew Thakur, Shri Iswar Chyatanna Mahaprabhu Thakur. I have gone through the copies of the judgment of the Munsif, the Additional District Judge in an appeal, the copies of the various judgments of the High Court in appeals against orders passed by Single Bench of Civil Writs. I have also gone through the judgment of an Appellate Authority, that is District Land and Land Reforms Officer, Tamluk in appeal case no. 17T•of 1979, under s. 54 of West Bengal Land Reforms Act. This appellate order is dated 27.3.92. The questions which arose before the Learned B.L. and L.R.O., Tamluk were:
Whether the above three deities and Bishnu Pad a Das Adhikari as the shebaits could retain for themselves lands separately as separate units under s. 14T of West Bengal Land Reforms Act. The D.L. and L.R.O. Tamluk, in his order in appeal held that the three deities constituted one family, being in
