IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56015 of 2007 Hari Krishna Prasad, aged about 71 years, son of Late Rai Bahadur Bhansidhar, resident of village Ekoria, PO Kunoni, PS and District Banka, at present resident of Jagatarni Niwas, Mohalla Court Road, Near VIP Chowk, PO and PS Deoghar, District Deoghar, Jharkhand – petitioner. Vs. 1. The State of Bihar, 2. Bacchu Ray, 3. Ram Chandra Ray, 4. Ashok Ray, 5. Shiv Chandra Ray, all sons of Rasik Lal Ray, 6. Mukesh Ray, so called son of Late Ram Dhari Rai, actual son of Ram Chandra Ray, all of Deokal, PO Manjira, Gauripur, PS and district Banka – opp. parties. … For the petitioner : Mr. R. K. P. Singh and Mr. P. K. Sinha, Advocates. For the State : Dr. M.N. Jha, Add. P.P. For the opposite parties : Mr. Pramod Kumar Sharma, Advocate. … 3 31.3.2010 Heard learned counsel for the parties. This application has been filed for quashing the order, dated 5.9.2005, passed by the 7th Additional Sessions Judge, Bhagalpur in Criminal Revision No. 364 of 2002. The case of the petitioner is that the lands purchased appertains to C.S. Khata No. 17, measuring 124 acres and 46 decimals. The disputed land measures 34 acres and 17 decimals only. There were several recorded raiyats of the lands belonging to khata no.17. In 1938 the ex-landlord filed a rent suit against the recorded tenants. The recorded tenants were not able pay the rent and as such the entire holding was to be sold. Most. Dayawati Devi @ Kumri was the mortgagee of some of the lands appertaining to khata no.17. As a mortgagee Dayawati Devi was in possession of the lands. Therefore, on being approached by the recorded tenants, Dayawati deposited the decreetal amount in the rent suit and 2 continued to remain in possession. Later Dayawati Devi filed Money Suit No. 221/1937against the heirs of recorded tenants. The suit was decreed on 31.1.1938. Dayawati Devi thereafter filed Execution Case No. 27/1938 and an order was passed for sale of the land. On 8.8.1938 sale certificate was issued with respect to the entire lands measuring to 124.46 acres and Dayawati Devi by the permission of the court purchased the said lands. However, the certified copy to show the delivery of possession of the lands is not available with the petitioners. It is submitted that this fact has caused confusion in the mind of the consolidation authorities as well as the mind of the 7th Additional Sessions Judge hearing the criminal revision. The certificate of delivery of possession could not be made available as the certificate forming part of the record of the case was destroyed, as the case was more than twelve years old. The petitioner is the heir of Dayawati Devi whereas opposite parties are the heirs of recorded tenants. Another fact which is important in this respect is that out of 34.17 acres, 9.7 acres were sold during the consolidation proceeding after taking permission of the Consolidation Officer under section 5 of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act (hereinafter referred to as ‘the Act’). The Additional Sessions Judge has considered the fact that there is a publication under section 8 of the Act which shows that the petitioner is the raiyat and the opposite parties are in possession of some of the lands. Subsequently before this court the original 3 documents have been produced which is under section 11 of the Act. Section 11 of the Act refers to preparation of a draft scheme and an elaborate procedure has been devised for preparation of the said draft scheme which includes constitution of a Village Advisory Committee. This document is, dated 8.6.1988 which does not indicate that the opposite party is in possession. After the preparation of the draft scheme which is to be published under section 12 of the Act, there is a provision of filing objections to the draft scheme under section 12A of the act. There is also a provision of appeal etc. In my opinion the Additional Sessions Judge could not have referred to a document under section 8 and hold that it would finally declare the possession of the parties. Till the time a publication is not made, objection is not raised in accordance with section 12 of the act and final publication made thereafter, it cannot be said that the decision of the consolidation authorities is final. It is also the undisputed proposition of law that during the pendency of a consolidation proceeding, there can be no proceeding under section 145 of the Code of Criminal Procedure which has been settled by decisions of this court in the case of Subhash Prasad Singh and others vs. State of Bihar, 1986 PLJR 1176 and in the case of Ram Nihora Singh vs. Ram Sanjwan, 1994 (2) PLJR 160. Apparently, the proceeding under section 145 of the Cr.P.C. was initiated on 13.12.1986 and consolidation proceeding began thereafter. In my opinion the 145 Cr. P. C. proceeding ought to 4 have been dropped, and the court should have resorted to any other legal method to maintain peace, if there was breach of peace. I would also like to clarify another aspect of the matter. The Additional Sessions Judge has relied on the publication made under section 8 of the Act. The legal position is that a draft publication could never be treated as an admissible document under section 103A of the Bihar Tenancy Act read with section 74 of the Evidence Act which will always be subject to the final publication. At present the position is that all consolidation proceeding which were earlier dropped, have been revised by order of this court. However, it is also a fact that in pursuance of the order of this court consolidation proceeding have not yet been initiated in the State of Bihar due to lack of infra-structure. Therefore, I find that the order of the Additional Sessions Judge is not in accordance with law. The Additional Sessions Judge ought to have dealt with the entire facts, the evidence which has come on record and ought to have passed a detailed order instead of confining himself to the documents allegedly filed under section 8 of the Act. Accordingly, the order dated 5.9.2005 is quashed and the matter is reminded back to the 7th Additional Sessions Judge, Bhagalpur, if available, or to any Additional Sessions Judge at Bhagalpur. This application is thus allowed. haque (Sheema Ali Khan, J.)