IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.954 of 2008 1. HASHIM MIAN 2. FATEHMAHAMMAD MIAN 3. YASIN ANSARI 4. RAJIQ MIAN 5. GYASUDDIN MIAN @ GYAS MIAN 6. JAJUL MIAN 7. ISRAFIL MIAN 8. SAKIM MIAN 9. MUSTAKIM MIAN 10. AARAS MIAN 11. FARMAN MIAN 12. SHAMIM MIAN 13. ANWARUL MIAN @ ABARUL MIAN 14. NAZIR MIAN 15. KASHIM MIAN 16. MD. REHAN MIAN 17. FARUGE MIAN 18. AMIN MIAN AND 19. MANAJAR MIAN, ALL RESIDENT OF DAROL, POLICE STATION MATIARIA, WEST CHAMPARAN. Versus 1. THE STATE OF BIHAR 2. DISTRICT MAGISTRATE, WEST CHAMPARAN 3. SDO, NARKATIAGANJ 4. CO, GAUNAHA CIRCLE, WEST CHAMPARAN 5. ACHAURI PULIN BIHARI VERMA, SHERAHWA, MATIARIA, W.CHAMPARAN 6. JAGDISH PARASAD SRIVASTAVA 7. MANOJ SRIVASTAVA, BOTH RESIDENT OF SHERAHWA, MATIARIA. ----------- 7 05.08.2010. Heard learned counsel for the petitioners and opposite parties. The petitioners have prayed for quashing order dated 9.8.2008, passed by the S.D.O., Narkatiaganj, in Case no. 632 of 2008, whereby the proceeding under section 145 Cr. P. C. has been initiated in respect of land detailed in paragraph 4 of the writ petition, which are in exclusive possession of othe petitioners as Sikami under raiyats (Sikamidar) since 1913. The petitioner has also prayed for quashing order dated 11.9.2008, passed by SDO, Narkatiaganj in Case no. 632/m/08, whereby officer in 2 charge of Matiaria Police Station has been appointed as receiver of the aforesaid land. The petitioners claim to be the original sikimidars as their names had been entered in 1913 Cadastral survey. Petitioners further state that the land belonging to village Sherwa bearing Khata no. 19 and plot no. 137,139,150,151,146,153,154,148,149,147 & 138, totaling 9 acres 47 decimals. Petitioners state that a collusive proceeding was brought by one Bipin Bihari Verma, respondent no.5, the great grand son of original land lord Ambika Prasad. He submits that respondent no. 5 brought proceeding which was subsequently converted into 145 Cr.P.C. against his cousin, namely, Jagdish Prasad, Srivastava and Manoj Sriwastava, who are second party in Case no. 632 M/08 under sections 144,145 and 146 Cr.P.C. before the SDO, Narkatiyaganj. Learned counsel for the petitioner submits that they are aggrieved by order of attachment as well as appointment of receiver, as the same tantamounts to interference in their possession over the land in question, particularly, appointment of Officer-in-charge, Matihanya Police Station as receiver. He submits that the learned Magistrate ought to have made them party and heard them before passing order, as they were declared Sikmidar of the land, as would also be evident from annexure 6 series annexed to supplementary counter affidavit. In any view of the matter, as they were not party, the impugned order would 3 not bind them. Counter affidavit has been filed on behalf of respondent no.5 stating that property in question belongs to his grand father and he is cousin and are in possession of the same. It has been stated that a petition under section 48 E of the BT Act was filed before the CO which was rejected vide order dated 28.11.2008, a copy of order is contained in annexure E to the counter affidavit. He submits that petitioner no.1 and 3 filed a petition in the court of the DCLR to make correction in Jamabandi no. 11 and 12 and for further declaration of their possession over the aforesaid land and to make correction in Jamabandi Register which was instituted as Case no. 15/2008-09 and a report was called for from the Circle officer, Gaunaha. It is further submitted that order declaring petitioners as Bataidar under 48(Gha) of the BT Act is an ante dated order. Learned counsel vide referring to annexure J submits that proceeding under section 48(Gha) of BT Act was adjourned for 30.8.2008. The matter was again adjourned for 5.6.2008 due to absence of opposite party. Ultimately vide order dated 12.6.2008 (annexure K), the Circle Officer declared raiyati right on the land to Azaul Mian and directed the Halka Karmachari to establish the Zamabandi, after taking land rent. However, respondents did not dispute the proposition of law that the proceeding would not bind a person who is not party to it. Learned counsel for the petitioners submits that the 4 learned Single Judge in case of Harendra Singh and others Vs. Rajendra Singh and others, reported in 1988 PLJR 602 observed that all civil suits and proceedings under section 145 Cr.P.C. are barred, once proceeding under section 48E of the B.T. Act with respect to Bataidari dispute is initiated. In such situation a Magistrate cannot proceed under section 145 Cr.P.C. though he can resort to sections 107 and 144 Cr.P.C. for taking steps to prevent breach of peace. It appears that the case of petitioner under section 48E of the B.T. Act was rejected as same was filed before a wrong forum. Counsel or the petitioners states that he would be soon filing a petition under section 48E of the B.T. Act before the Collector under the Act or would take recourse to any other remedy under the law. In case, such petition is filed under section 48E of the B.T. Act, the same would be disposed of by the Collector expeditiously, preferably within a period of six months from date of filing of any such petition. Any order in proceeding as above would be subject to the result of proceeding under the BT Act. It goes without saying that Officer-in-charge, Matihanya who has been made receiver in this case would be accountable so far as receipt from the land is concerned. The writ petition stands disposed of accordingly. Shashi. (Samarendra Pratap Singh, J.)