IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. W. J. C. No.674 of 2008 Navanit Sinha son of Late Dr. R. H. P. Sinha, resident of Surajpura Kothi, Road No.26, Sri Krishna Nagar, Patna, P.S. Budha Colony and District- Patna …Petitioner Versus 1. The State Of Bihar, 2. Sri Sunil Kumar, Sub-Divisional Magistrate, Danapur, 3. Shri Devendra Prasad Tiwary, Executive Magistrate, Danapur, Patna, 4. The Deputy Collector, Land Reforms, Danapur, District- Patna, 5. The Anchal Adhikari, Maner Anchal, Maner, District- Patna, 6. Satyendra Nath Lal S/o Late Keshav Prasad Lal, R/o village- Semaria, P.S.-Sahpur, District- Bhojpur, at present Flat No.202, B Block, Jagmano Shree Garden Ved Nagar, P.S. Rupaspur, District- Panta,& 7. The Executive Officer, Maner Nagar Panchayat, Maner, P.S. Maner, District- Patna … Respondents ----------- For the petitioner : Mr. Keshav Prasad Srivastava, Sr. Advocate For the respondent no.1-5: J. C. to AAG For the respondent no.6 : Mr. S. N. P. Sinha, Sr. Advocate For the respondent no.7 : Mr. Damodar Prasad Tiwary, Advocate ------------ 23/ 15.09.2011 The petitioner initially filed a criminal writ application against the orders of Revenue and Executive Officer of Maner Anchal and Danapur Sub-Division of the District of Patna, by which they had initiated a proceeding under section 144 Cr. P. C. and converted the same under section 145 Cr. P. C. but subsequently impugned the order dated 02.08.2008 by which the Court below had attached the disputed lands and appointed a Receiver. By order dated 13.08.2008, this Court while entertaining the application had stayed the operation of the order impugned dated 05.07.2008 which was the order passed in a proceeding under 2 section 145 Cr. P. C. and allowed time to State for filing Counter Affidavit, but it was to no avail on account of the fact that the order of attachment had been passed by then. On 18.12.2008, an intervention application on behalf of the Maner Nagar Panchayat was filed. On 13.07.2010, another intervention application being I.A. No.1125 of 2009 was filed on behalf of Satyendra Nath Lal for impleading him as Respondent in the instant application as he was one of the affected persons. The Court directed the petitioner to implead him as Respondent no.6. On 24.09.2010, yet another I.A. No.1986 of 2008 was filed by the Executive Officer, Maner Nagar Panchayat, District- Patna, for adding him as Respondent which also stood allowed and he was added as Respondent no.7. It was brought to the notice of the Court by the Respondents that even before the petitioner had moved this Court on 05.08.2008, an order attaching the lands was passed on 02.08.2008 and, therefore, the petitioner filed a supplementary affidavit impugning the said order. The dispute pertains to actual possession of Plot No.190, Area-2.61 acres, Khata no.587, Mauza- Ahiyapur, P.S. Maner, mentioned in the Khatiyan as Kaji Talab Gair Mazarua Malik. On 24.07.2008, a proceeding under section 144 Cr. P.C. was initiated by the side of the government upon which notices were issued to the petitioners to show cause whereafter final orders were passed converting the proceeding to one under section 145 Cr. P. C. Thereafter, an application was filed under section 146(1) Cr. P.C. on 24.07.2008 with prayer to attach the disputed land and appoint 3 Receiver till the determination of the rights of the parties by a competent Court on the ground of serious apprehension of breach of peace. The petitioner was directed to file rejoinder, but he sought time on 28.07.2008 and yet again on 02.08.2008 which was not allowed by the court below and the impugned order was passed. The case of the first party i.e. government was that the disputed plot No. 190 Khata No.587 was recorded as Kaji Talab in Khatiyan and its characters never changed. The dispute arose when some unknown persons started filling the Tank of plot No.190 to which the local residents of Maner objected since the Tank was of public utility and filed a public petition which was sent to the District Magistrate, Patna. The District Magistrate, Patna, called for a report from the Circle Officer, Maner, who supported the stand taken in the public petition. The DCLR, Danapur, then enquired into the matter and according to his report the entire area of the locality would be submerged in water if the Tank is allowed to be filled up by the petitioner since the Tank was a reservoir of rain water which would have no other outlet and resultantly would submerge the area if the Tank was filled up. The report of the DCLR was also that there was serious apprehension of breach of peace. When the proceeding was initiated under section 144 Cr. P. C., show cause notices were issued to the petitioner. The petitioner’s show cause was to the following effect: (i) That the dispute was with regard to : Khata No. Plot No. Area Nature of Land 587 189 85 decimals Behind Pokhar 587 190 2 acres 61 decimals Kazi Talab 4 The petitioner claimed that he had no concern with 33 ½ acres of plot No.190 which belonged to Sri Ram Ranvijay Pd. Singh alias Mastana Singh of Maner nor did he have any concern with Khata No.587, Plot No.189, Area 85 decimals which was incorporated in the report dated 07.05.2008 of DCLR, Danapur, to create confusion. (ii) According to him, an area of 85 decimals of plot no.189 and 2 acres 61 decimals of plot no.190 was behind Pokhar and Kaazi Talab reportedly and were divided in Tauzi no.2751, 3123, 3124 and 3306 and belonged to ex-landlord, who were in actual possession of the same. In course of time, the estate lost its original nature and some of them became Kast Raiyati land while others Sakna homestead land. Hence, the raiyats started enjoying the lands as bonafide settlee landowners, whereas, the plots involved in the present dispute became shallow ditches. The landlord being pleased with their raiyats settled the said lands in their favour through oral settlement and receiving salami or through written Hukumnama or Pattadamani. (iii) One Awadhesh Prasad son of late Dwarika Prasad and Alakhnandan Prasad were settled an area of 2 5 acres 61 decimals to the tune of 14 annas and 2 annas respectively by the Zamindar Sheikh Samsuddin through Hukumnana and resultantly they came in possession of the same and were getting Lagan receipts with regard to the settled land. (iv) After the two settles came in possession they started breeding fishes and growing Singharas and also sowed the lands growing seasonal crops. (v) After vesting of the Zamindari, Alakhnandan stopped paying Lagan to the State, whereas, for 16 Annas Awadhesh Prasad paid the same exclusively. (vi) The State noting the Lagan due presumed even Awadhesh Prasad was not paying Lagan and, therefore, auction sold an area of 2 acres 61 decimals which was objected to by Awadhesh Prasad and the land was released by an order dated 02.05.1956 in Case No. 1 of 1955-56. Thereafter Alakh Nandan Prasad sold his share of land but in excess to what he was holding on account of which a dispute arose between Alakh Nandan and Awadhesh Prasad which was sorted out in T.S. No.203 of 1971 and the decree was prepared in favour of Awadhesh Prasad on 31.05.1971. According to this, an area of 2 acres 28 ½ decimals equal to 3 Bighas 13 Kathas 1 dhur was apportioned to Awadhesh Prasad while remaining was given to 6 the purchaser Ram Ranvijay Pd. Singh. Subsequently, the said Awadhesh Prasad sold the land to the petitioner through a registered sale dated 07.12.1984 and handed over possession of the same who also in due course started paying Lagan to the State. On the other hand, the case of the State was that the disputed plot was Kaji Talab Gair Mazarua Malik land and it was still a pond in which Singhara was being grown. When the petitioner, started filing up the said pond, this dispute arose and the three orders under sections 144, 145 and 146 Cr. P. C. were passed which were against the petitioners. The Court while passing order under section 146 Cr. P. C. considered that it was undisputed position of law that all lands, trees, fisheries and minerals vested in the State. It further held that valuation of land was Rs.112.50 for 15 Kathas in the year 1939, and, therefore, the value of 2.61 acres which was the area of Plot No.190, Thana No.-34 would certainly be more than Rs.100/-. Under the circumstances, unless settlement by registered instruments as provided under section 54 of the Transfer of Property Act was made, the settlement was definitely baseless. The fact that the petitioner could not produce Hukumnama on which basis he came into possession of the land went against the petitioner. Moreover, there could not be settlement of Tank since it was not permissible without it being settled with its embankment used for agricultural purposes. As per section 17 of the Registration Act, it required that lease for over a year be registered and if not registered, it would be inadmissible in evidence under section 49 of the Registration Act 7 and would be precluded from consideration under section 91 of the Evidence Act and, therefore, unregistered Hukumnama of the petitioner become inadmissible in law. The Court also took note of the fact that the petitioner put forward conflicting stands with regard to settlement by saying at one point in time that after the land vested in the State and no Lagan was paid of the share of settled land of Alakh Nandan Prasad, entire land of plot no.190 measuring 2.61 acres were auction sold and then went on to say that in fact the Collector had released the land from auction sale through his order dated 02.05.1956. Further, the Jamindar had no right to settle the land which was revenue paying land and, therefore, the claim of the petitioner was bad. The decision of the Sub-Judge II, Patna, in Title Partition Suit No. 202 of 1970 was held to be bad in law since according to established law after the preliminary decree for partition in respect of land revenue paying estate is sent to the Collector the Civil Court becomes functus officio and, therefore, could not pass a final decree. Since there was dispute with Plot no.190 which was a revenue paying estate as mentioned in Khewat (Part-1), the final decree of partition could be passed only by the Collector. After due consideration of the cases of the parties, it held that the petitioner could not establish his possession over the disputed land and from the various stands taken by the parties the court could only deduce that the petitioner was trying to take possession of the Tank. It also concluded that there was likelihood of breach of peace on the disputed land. Since the Court was not 8 able to decide as to which of the parties was in actual possession of the land on the basis of the documentary evidence, it attached the land in question. The petitioner has challenged the orders on the ground that it was not a case under sections 145/146 Cr. P.C. and at best it would be a case under section 147 Cr. P. C. and a suit was required to be filed by the villagers. Further submission is that the area mentioned was vague and, therefore, entire proceeding was bad. It is also submitted that actually possession of the petitioner was admitted by the opposite party and the Hukumnama could not be objected at this stage when it was decided in a suit and the State should have gone into appeal as against the decree in suit, but since it had not done so, they cannot now question Hukumnama. The petitioner lastly concluded that no opportunity had been given before the final order under section 146 Cr. P. C. was passed. On the other hand, the State and the intervenors have submitted that under the circumstances when the Court could not conclusively decide as to which of the parties was in possession, it rightly attached the land. On going through the provision of section 146 Cr. P.C., one finds that there are two clauses which need to be satisfied when such an order is passed. The first clause is that the Court should consider that it is a case of emergency and the second such an order is to be passed if he is unable to satisfy himself as to which of the party was in possession of the subject matter of dispute. Since this Court cannot arrogate to itself the power of 9 deciding as to which of the conflicting claims was tenable, this Court is confining itself to evaluating the order of the Sub-Judge on the two clauses mentioned above. From the order impugned I find that it was satisfied that in the facts of the case after the independent reports of the Circle Officer, Maner and the DCLR, Danapur, there was no manner of doubt that there was serious apprehension of breach of peace between the parties. On the one hand was the interest of an individual, whereas, on the other hand was that of the villagers residing in the area, who apprehended that action of the petitioner in attempting to take possession of the pond and filling it would jeropardise their life. As for which party was in possession one finds that number of documents were produced by both the parties. Even while the petitioner was claiming the disputed land to be in his possession, the fact that the same was derived from a certain source was not tenable as also the reports of the DCLR, Danapur, and the Circle Officer, Maner concluded otherwise. On the other hand, the claim of the government as to the reasons why the land could not have been in possession of the petitioner appears to be more cogent. Even this Court is unable to decide as to which of the parties was in possession of the disputed land and, therefore, the conclusion the court below arrived at on this issue is quite understandable. In the result, the application is dismissed. However, if at any point in time, it is brought to the notice of Magistrate that there is no longer likelihood of breach of 10 peace, it will be open to him to withdraw the order of attachment. In the meanwhile, the aggrieved party is free is move the Court of competent jurisdiction for ascertaining his right, title and interest. JA/- (Anjana Prakash,J.)