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Kirtan Jena Vs. Biswanath SwaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Property
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 332 of 1981
Judge
Reported in1984(II)OLR1039
ActsOrissa Land Reforms Act, 1960 - Sections 15; Code of Criminal Procedure (CrPC) , 1973 - Sections 145 and 146
AppellantKirtan Jena
RespondentBiswanath SwaIn and anr.
Appellant AdvocateS. Kr. Mohanty, Adv.
Respondent AdvocateB.B. Ratho and ; M. Misra for O.P. 1
DispositionPetition allowed
Cases ReferredMathuralal v. Bhanwarlal and Anr.
Excerpt:
.....by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - by order dated 17.12.1976 the learned magistrate being satisfied about the existence of a dispute concerning the case land and the paddy crop thereon which was likely to result in breach of the peace converted the proceedings under section 144, cr. 1) failed to produce any order staying the operation of the order of the appellate court confirming that of the revenue officer, aska. the position of law is..........property was impleaded in the proceeding on his own application. by order dated 17.12.1976 the learned magistrate being satisfied about the existence of a dispute concerning the case land and the paddy crop thereon which was likely to result in breach of the peace converted the proceedings under section 144, cr. p. c, to one under section 145, cr. p. c by the same order the learned magistrate in exercise of his power under section 145(8), cr.p.c., appointed the revenue inspector of narendrapur to be the custodian of the crop standing on the disputed land and directed him to put the standing crop in public auction. subsequently, by order, dated 4. 5. 1977, he permitted the present petitioner to be impleaded in place of his father bira jena who expired during the pendency of the.....
Judgment:

D.P. Mohapatra, J.

1. The petitioner, a member of the second party in a proceeding under Section 145, Criminal Procedure Code, seeks to challenge the revisional order of the Sessions Judge, Ganjam-Boudh, Berhampur, directing the proceeding under Section 145, Cr. P. C, to continue in spite of the petitioner having been declared as the tenant in. respect of the disputed property under the Orissa Land Reforms Act.

2. A proceeding under Section 144, Cr.P.C. (M. C. No. 19/76) was initiated on the petition filed by the opposite party No. 1 before the Executive Magistrate, Aska. In the said proceeding, Bira Jena, father of the petitioner was impleaded as the second party. The disputed property was described as 4,55 cents in Survey No. 290 under Patta No. 532 of village Govindapur. Subsequently, opposite party No 2 claiming to be the landlord in respect of the disputed property was impleaded in the proceeding on his own application. By order dated 17.12.1976 the learned Magistrate being satisfied about the existence of a dispute concerning the case land and the paddy crop thereon which was likely to result in breach of the peace converted the proceedings under Section 144, Cr. P. C, to one under Section 145, Cr. P. C By the same order the learned Magistrate in exercise of his power under Section 145(8), Cr.P.C., appointed the Revenue Inspector of Narendrapur to be the custodian of the crop standing on the disputed land and directed him to put the standing crop in public auction. Subsequently, by order, dated 4. 5. 1977, he permitted the present petitioner to be impleaded in place of his father Bira Jena who expired during the pendency of the proceeding. But by order, dated 1. 6. 1977 he recalled the permission to implead the present petitioner in place of Bira Jena on the objection of opposite party No. 1. On 12.7.1977, to which date the case was posted for hearing, some documents were filed by the third party who prayed to declare possession of the deities, Sri Laxrninarayana Mohaprabhu represented by Mahanta Sri Gobardhan Das Babaji in respect of the case land. By order, dated 15.7.1977 on a consideration of the case of the respective parties the Court observed that the real dispute hinges round tenancy in respect of the disputed land and could not satisfy himself as to whether the first party or the second party or the third party was in possession of the disputed land on the date of the preliminary order. He further observed that the Criminal Court was not the forum for determination of the right of tenancy. He directed the parties to approach the competent Court for determination of their rights. Accordingly, he converted the proceeding to one under Section 146, Cr. P. C, and attached the disputed land until a competent Court determines the rights of the parties. By the same order he appointed the Revenue Inspector, Narendrapur, as receiver in respect of the attached lands. After several dates on which the case was posted for different purposes, with which we are not concerned in this proceeding, on 26.4. 1980 the counsel for the second party (petitioner) filed a petition to release the 'and under attachment and also the amount in deposit in favour of his client in view of the order passed by appellate Court in the O.L.R. case accepting the claim of tenancy of the second party. He filed certified copies of the judgment in the O.L.R. appeal. The learned Magistrate posted the case to 13.5.1980 for hearing on this matter. On 13.5.1980 on the prayer of opposite party No. 1 for an adjournment in order to enable him to obtain the order of stay from the Revenue Divisional Commissioner (Southern Division) before whom he had filed O.L.R. Revision Case No. 75/80 challenging the appellate order, the case was adjourned to 20. 5. 1980. On 20th of May, 1980 the counsel for the first party (opposite party No. 1) failed to produce any order staying the operation of the order of the appellate Court confirming that of the Revenue Officer, Aska. The learned Magistrate took note of the orders in the O.L.R. proceeding in favour of Kirtars Jena S/o. Bira Jena (the petitioner) as a tenant tinder the Mahanta Gobardhana Das Marfat Laxminarayana Mohaprabhu Biie Saragada and observed that the second party member waa eligible to receive the possession of the disputed land until evicted therefrom in due process of law. He, therefore, vacated the order dated 15. 7. 1977 attaching tha disputed land under Section 146(2)., Cr. P. C, and directed that possession of the land be delivered to the second party member by the receiver at once. By subsequent urder, dated 12.6.1980 on a report of the Rule 1. that Bira Jena was dead and his son Kirtan Jena is the legal heir and also on the petition filed on behalf of Kirtan Jena for being impleaded in place of his deceased father, the learned Magistrate directed that the possession of the disputed land be delivered to Kirtan Jena.

Against the aforesaid directions of the learned Magistrate, opposits party No. 1 filed Criminal Revision No. 43 of 1980 in the Court of the Sessions Judge, Ganjam-Boudh. The learned Sessions Judge by his impugned order not only vacated the order of the learned Magistrate directing possession of the disputed land to be delivered to the second party (petitioner) but be further directed that the proceeding under Section 145, Cr.P.C., in respect of the disputed land shall be deemed to be pending and the learned Magistrate is to held an enquiry into the physical possession of the parties over the disputed land by giving opportunity to them to adduce oral evidence in support of their respective pleas and thereafter to pass necessary orders. The learned Sessions Judge took the view that on passing an order of attachment under Section 146(1), Cr.P.C. tha proceeding under Section 145, Cr. P. C, does not come to an end automatically and hence the Magistrate should have continued the proceeding in spite of the order of attachment notwithstanding the fact that the Revenue Court declared the second party to be the tenant in respect of the disputed land under the Orissa Land Reforms Act.

3. The learned counsel for the petitioner has challenged the impugned order of the Sessions Judge mainly on the ground that he has erred in not giving the consideration to the decision of the authorities under the O.L.R. Act, which Is admitted the appropriate forum for declaration of tenancy. He has further submitted that the learned Sessions Judge was not justified in directing the proceeding under Section 145, Cr.P.C. to continue after a lapse of more than 4 years. He has also challenged the order of the learned Sessions Judge in setting aside the order dated 15.7.1977 wherein the learned Magistrate converted the proceeding under Section 145, Cr.P.C. to one under Section 146(1), Cr.P.C., since that was not the subject-matter of the revision filed before him.

4. The factual position is not in controversy that on the application filed by the opposite party No. 1 under Section 15 of the Orissa Land Reforms Act the Revenue Authorities have come to the decision that the petitioner is the tenant under the deity Laxminarayana Mohaprabhu, Marfat Mahanta Gobardhana Das and have negatived the claim of tenancy of the opposite party No. 1, It is also not in controversy that though a revision case has been filed challenging the order of the appellate authority confirming that of the Revenue Officer, no order of stay has been obtained from the revisional authority. The position of law is well settled that it is the duty of the Criminal Court to respect recent decision of the Civil Court or the Revenue Court whichever is the appropriate forum in the matter, regarding possession. If after such declaration any apprehension of the breach of peace arises, steps should be taken to bind down the parties who have lost before the competent forum and there should be no fresh enquiry into the question of possession by initiating a proceeding under Section 145, Cr.P.C A declaration of tenancy in favour of a party under Section 15 of the O.L.R. Act presupposes the possession by the said party and there is no question of delivery of possession in such a case. This is the view taken by this Court in the case of Baishnab Parida and Ors. v. Subal Bhoi and Ors., 45 (1978) C.L.T. 297. It is pertinent to mention here that under Section 67 of the O.L.R. Act, jurisdiction of the Civil Court in respect of the matter dealt with under the Act has been barred. In view of the settled position of law there is no escape from the conclusion that in the facts and circumstances of this case continuance of the proceeding under Section 145, Cr.P.C., is inappropriate. Hence, the direction of the learned Magistrate to this effect cannot be sustained.

5. The other aspect of the matter which needs consideration is the view taken by the learned Sessions Judge that merely on passing of an order under Section 146(1) the proceeding under Section 145 of the Code automatically does not come to an end and the learned Magistrate does not become functus officio thereafter. The Court has relied on the decision of this Court in the case of Trinath Mohanty v. Laxman Nepak and Ors., reported in 1979 C.L.R. 63, in support of this view. In the meanwhile the Supreme Court in the case of Mathuralal v. Bhanwarlal and Anr. ( A.I.R. 1980 S.C. 242 ) has settled the controversy regarding the matter and has held that the Magistrate's jurisdiction does not come to an end as soon as an attachment is made on the ground of emergency. Section 146 does not contemplate that regardless of the situation, consequent upon which an attachment is effected, it is the Civil Court and not the Magistrate that is to have further jurisdicfcion in the matter, after an attachment is settled. Hence, the view taken by the learned Sessions Judge on the question of law was correct. But as discussed in the foregoing paragraph, in the facts and circumstances of the present case in view of the very recent declaration of tenancy in favour of the petitioner which is entitled to due respect and protection from the Criminal Court, the learned Sessions Judge should have held that continuance of proceeding under Section 145, Cr. P. C, is inappropriate. He, therefore, erred in giving a direction for continuance of the proceeding under Section 145, Cr.P.C.

Since the petitioner has succeeded before the Revenue Court which is the competent authority to decide the question of tenancy, there is no reason why he should be deprived of the benefits of the said orders of the Revenue Officer which was confirmed by the appellate Court. No material has been produced to show that the revisional authority has passed any order affecting the operation of these orders. It is, however, open to the opposite party No. 1 to approach the revisional authority before whom the revision is said to be pending for appropriate interim order/direction.

6. In view of the discussion aforesaid, the revision petition is allowed. The order of the learned Sessions Judge, Ganjam-Boudh, in Criminal Revision No. 43/80 is set aside.


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