Supreme Court of India
BHARAT PRASAD & ORS.versusTHE STATE OF BIHAR & ORS.
- Citation
- 2009 INSC 729
- Decided
- 6 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
Section 48E(13) of the Bihar Tenancy Act expressly ousts the jurisdiction of civil and criminal courts over Bataidari disputes once a proceeding under the Act is finalized, rendering the subsequent criminal proceedings under Sections 144/145 of the CrPC invalid.
Summary
The appellants, who had been granted Bataidari rights over a parcel of land through a proceeding under Section 48E of the Bihar Tenancy Act, saw those rights later challenged through multiple criminal proceedings under Sections 144 and 145 of the Code of Criminal Procedure. The High Court refused to quash the criminal proceedings, prompting the appellants to file a petition under Section 482 CrPC, which was also dismissed. The Supreme Court examined whether the special provisions of the Bihar Tenancy Act, particularly the ouster clause in Section 48E(13), barred criminal courts from exercising jurisdiction after the Bataidari proceeding had become final. It held that the special law prevails over the general provisions of the CrPC and that the criminal proceedings were an abuse of process, as the appellants could only challenge the Bataidari finding by filing a statutory appeal. Consequently, the Court quashed the High Court’s order and the pending Section 145 proceeding, allowing the appeal.
Issues considered
- The effect of Section 48E(13) of the Bihar Tenancy Act on the jurisdiction of criminal courts under Sections 144 and 145 of the CrPC.
- Whether a criminal proceeding can be instituted to disturb rights already adjudicated under a special law.
- Interpretation of the ouster clause in a special law vis‑à‑vis the general provisions of the Code of Criminal Procedure.
Legislation cited
- Bihar Tenancy Acts. 48E, s. 49C
- Code of Criminal Procedure, 1973s. 144, s. 145, s. 482, s. 5
Subjects
land tenancyBataidari rightsspecial lawjurisdictioncriminal procedureSection 48ESection 145distributive justiceouster clause
Judgment
[2009] 8 S.C.R. 309
.,.
BHARAT PRASAD & ORS. A
V.
THE STATE OF BIHAR & ORS.
(Criminal Appeal No. 952 of 2009)
MAY 06, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
•,•- GANGULY, JJ.]
- Bihar Tenancy Act - Section 48E (13) - Proceedings
initiated under s.48E and terminated in favour of appellants c
holding their rights as Bataidar - Such proceedings became
final - Provision of s. 1441145 CrPC was not then invokable -
s.48E(13) provides exclusion of power of civil and criminal
court over Bataidari rights - This is in tune with the principle
"f
of distributive justice - Courts must interpret the provisions D
of such socio-economic legislation in a manner which further
its purpose rather than frustrate it - Interpretation of statutes
- Code of Criminal Procedure, 1973 - ss.5, 144, 145 -
Principle of distributive justice.
E
The land in dispute was mortgaged in 1920. The
owner of the land sold the land in 1943 by registered sale
-; deed. The mortgage was not redeemed and the
mortgagee remained in possession of the disputed land.
The mortgagee gave the land to the appellants and his
F
brothers to cultivate as Bataidars. In 1977, the mortgagee
tried to dispossess the appellants from Batai land
whereupon Bataidars filed case. Said case was decided
in favour of appellants. No appeal was filed against that
order and it became final. Thereafter Bataidars separated
..I, and partitioned their land properties including the G
disputed land among themselves.
Various proceedings under Section 144/145 Cr.P.C
309 H
310 SUPREME COURT REPORTS (2009] 8 S.C.R.
A were initiated between the parties. Ultimately appellants
claimed to have filed Bataidari (Tenant) Case before the
appropriate authority. All the cases were heard together,
and Circle Officer came to a finding that appellants were
the tenant in respect of the disputed land and directed
-
B them to deposit money for creating Zamabandi in their
name, which they did. The respondents filed Criminal
Miscellaneous Case for quashing those proceedings and
various criminal proceedings initiated between the
~.
parties, which were dismissed. Challenging that order, '
c the petition under Section 482 Cr.P.C was filed before the~
High Court. High Court refused to quash the
proceedings. Hence the appeal.
Allowing the appeal, the Court
D HELD: 1. The High Court did not consider the effect
of the relevant provisions of Bihar Tenancy Act and the ..,
ambit of Section 145 of the CrPC. [Para 20) [316-G-H]
Badri Yadav v. Sat Narain Das and others (1993) Supp.
E (2) sec 347, relied on.
2. In the instant case clear finding was arrived at that
the appellants were Bataidars. Such a finding was arrived
at under the provision of the Bihar Tenancy Act which is
a special law. The provisions of Section 48E of the said .t
F Act provides for a complete machinery for enquiry into
the rights of a Bataidar and also provides for some
protection. Section 49C also imposes some restriction on
the transfer of such rights which is created in favour of
the tenants. So provisions of Section 48E and those of
G Section 49C supplement each other. [Para 21) [317-A-C]
3. The legislative purpose in enacting the provisions
of Section 48E of the Act is to ensure that the disputes
between raiyats and under-raiyats are settled as amicably
H
BHARAT PRASAD & ORS. v. STATE OF BIHAR & 311
ORS.
'"'· A
as possible and for that, detailed machinery was provided
under Section 48E of the said Act. It cannot be doubted
that said Act is a special and local law in the sense it is
confined within the State of Bihar. If the provisions of
Section 48E (13) of said Act is read as against Section 5
Cr.P.C., it will be clear that the effect of Section 5 Cr.P.C. B
is to render the provisions of Cr.P.C. inapplicable in
Jo respect of all matters covered by such special law. [Paras
• 22 and 24) (317-C-D; 318-A-B]
-· Ajmer Singh and Others v. Union of India and Others
1987 (3) SCC 340 and Maru Ram v. Union of India and
c
others ((1981) 1 sec 107, relied on.
4. Sub-section 13 of Section 48E of the said Act
makes it clear that no Civil or Criminal Court shall have
any jurisdiction over the subject matter of a dispute after D
a proceeding is initiated under sub-section (1) of the
Collector. Admittedly a proceeding under Section 48E
was initiated and it terminated in favour of the appellants
holding their rights as Bataidar. The said adjudication
became final. However, sub-section 48E (13) has a E
proviso to the effect that nothing in this sub-section shall
be deemed to affect the power of a Criminal Court to take
• such action as may be necessary for preventing breach
of the peace pending the final disposal of the proceeding
by the Collector. [Paras 26 and 28] (318-B-F] F
5. Here, after the proceeding became final and the
rights of the appellants were declared, repeatedly
provision of Sections 144 and 145 Cr.P.C were invoked
to disturb the rights which the appellants acquired in the
->i Bataidari proceedings. But the main provisions of G
Section 48E(13) was enacted to protect the Bataidari
rights of the parties and that is why it provides for an
exclusion of the power of the Civil and Criminal Court
over such rights. This is keeping in tune with the
H
312 SUPREME COURT REPORTS [2009] 8 S.C.R.
.:
~
A principle of distributive justice. Similar provisions were
made in various land reforms laws of different States. The
Courts while construing the provisions of such socio
economic legislation must interpret them in a manner
which furthers its purpose rather than frustrates it. [Para
B 29] [318-H; 319-A-C]
6. In this case, proceeding of Bataidari under Section
48E(1) was over and there was no pending proceeding. ..
....
Therefore, proviso of Section 48E (13) is not attracted. In
view of the main provision in Section 48E(13) of the said •
c Act jurisdiction of Criminal Court cannot be exercised in
view of the express ouster. [Para 31] [319-E]
Kunjbihari v. Bairam and another (2006) 11 SCC 66,
referred to.
D
7. If the respondents were aggrieved by the findings
reached in the Bataidari proceeding they had the
statutory right to appeal. Without doing that, the effect of
Bataidari proceeding cannot be scuttled with the
subterfuge and juggle of 144/145 proceedings. In the
E
facts of the case, such a proceeding is an abuse. The
High Court did not approach the legal issues involved in
this case in their correct perspective nor considered the
F
effect of Section 48E or sub-section (13) of the said Act
on a Section 145 proceeding. [Para 33) [320-A-B]
•
Case Law Reference:
(1993) Supp. (2) sec 347 relied on Para 20
1987 (3) sec 340 relied on Para 24
G
(1981) 1 sec 101 relied on Para 25 ...
(2006) 11 sec 66 referred to Para 32
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
H No. 952 of 2009.
I
BHARAT PRASAD & ORS. v. STATE OF BIHAR & 313
ORS.
From the Judgment & Order dated 23.05.2007 of the High A
Court of Judicature at Patna in Crl. Misc. No. 28219 of 2005.
- Smashar Singh, S. Sagar, A. Nandan and T. Mahipal for
the Appellant.
(
....
P.S. Mishra, Gopal Singh, Manish Kumar, Anuj Prakash, B
Chandan Kumar, Ravi C. Prakash, Upendra Mishra, D.K. Jha,
D.K. Pandey (for Bijan Kumar Ghosh) and Vishnu Sharma for
>·
• the Respondents .
The Judgment of the Court was delivered by c
GANGULY, J. 1. Leave granted.
2. The order of the High Court dated 23.5.2007, passed
under Section 482 of the Code of Criminal Procedure is
impugned before this Court. D
3. By that order, the High Court refused to quash the order
dated 10.2.2005 passed by 3rd Additional Sessions Judge,
Motihari in Cr.Revision No. 326 of 1992 whereby the order
dated 27.7.1992 passed by the Executive Magistrate, Raxaul
E
in case No.548(M) of 1991 was confirmed.
4. By the said order dated 27.7.1992, the Executive
~
~
- Magistrate declared possession in favour of the opposite
parties in a proceeding under Section 145 of the Code. The
relevant portion of the order is:- F
· "I declare the possession of the first side on the said land
until and unless they are dispossessed by the competent
Court and the opposite side is ordered that they shall not
interfere in the peaceful possession of the first side". G
..,
5. The material facts of the case are as under:
6. The land in question is 1 Katha 8 dhura out of plot Ne.
1853 under Khata No. 289 in village Gambharia Kala, P.S.
\ H
314 SUPREME COURT REPORTS [2009] 8 S.C.R.
A Darpa, District Motihari. The land originally belonged to one
Ram Lagan Tiwari of village Amnaur of District Chapra.
7. The case of the appellants is that one Ram Lagan Tiwari
mortgaged the said land to one Jagdish Prasad Singh son of
Tapasi Rai of village Bhopatpur Bajhia, P.S. Keshariya, District
8
East Champaran on 21.7.1920 for a period of 60 years.
8. It is further contended that some time on or about
9.11.1943, Ram Lagan Tiwari sold the land to one Jamadar ~
Rai @ Jamadar Bhagat of Village- Lahadia, P.S. Darpa, District
C East Champaran by a registered sale deed. Neither Jamadar
Rai @ Jamadar Bhagat nor Ram Lagan Tiwari redeemed the
mortgage and as a result whereof Jagdish Prasad Singh
continued in the possession over the disputed land. The said
Jagdish Prasad Singh, the mortgagee gave the said
o agricultural land to the appellants and his brothers to cultivate
as Bataidars. 'I"
9. The appellant contends that he along with Jai Bihar Sah
took possession of the said and cultivated it as Bataidar.
E 10. It is further contended that on 18.8.1977, the said
Jagdish Prasad Singh tried to dispossess the appellants and
Jai Bihar Sah from the Batai Land whereupon the appellant
No.2 -Lakshman Prasad filed Sikmi Batai Case No. 480 of
1975 and Jai Bihar Sah filed Sikmi Batai Case No.257 of 1976
F before the L.R.D.C. Both the Sikmi Batai Cases were decided
against Jagdish Prasad Singh and in favour of the appellants.
11. The concluding portion of the said order as follows:
G " .... From the statements of different persons and inquiry
report it has becrnme undisputed that Sri Lakshman
Prasad Sah, Batayidaar along with his family members
had been cultivating this land for more than 30 years as
batayidaar and distribute the share of _the crops to Sri
H
BHARAT PRASAD & ORS. v. STATE OF BIHAR & 315
- ORS. [ASOK KUMAR GANGULY, J.]
Jagdish Prasad Sah the remaining 1 bigha of land but till
today 2 bighas and 2 katthas of land are in his peaceful
A
possession and legally Sri Lakshman Prasad Sah has got
Sikri right over the 2 bigha and 2 katthas of land which is
equivalent to acre and decimel. .. ".
~
B
12. Against the said order no appeal was preferred. The
said order has become final.
...•
13. It is also the appellants' case that then Lakshman
Prasad and his two brothers, namely, Ram Chandra Prasad
and Bharat Prasad separated from each other and partitioned c
the entire land including the land in question among themselves.
14. It is alleged that then on 26.6.1979, Vendee of the
original landlord Ram Lagan Tiwari, i.e. Jamadar Rai @
-r Jamadar Bhagat sold the entire land in favour of Dharaman D
Prasad and his three sons, namely, Shesh Nath Prasad,
Pramod Kumar and Binay Kumar by a registered sale deed
on 26.6.1979.
15. It is alleged that on 26.12.1981, Laxman Prasad
executed one "Ezabnama" for Sikmi Batai in favour of E
Dharaman Prasad and his sons.
f 16. Thereafter, a proceeding under Section 144 of the
Code was initiated and the Sarpanch of Gamhari Kala
Panchyat recommended initiation of such proceeding only on F
2 Bigha,2 Katha land against the appellants out of total land of
3 bigha,22 Katha,5 Dhurs.
17. However, the said proceeding was dropped by an
order dated 9.1.1984 passed by the learned Sub-Divisional
.. Magistrate in regard to some portion of the land and it was
directed that the proceeding will be continued only on 1 Bigha,
G
8 Katha land and the proceeding under Section 144 of the
Code was converted into Section 145 of the Code.
18. In the said proceeding, the appellants claim to have H
316 SUPREME COURT REPORTS (2009] 8 S.C.R.
A filed their show cause stating the history starting from 1920.
On the basis of police report, a separate proceeding
under Section 144 of Cr.P.C was initiated which was converted
into a proceeding under Section 145 of Cr.P.C and in the said
proceeding the respondents herein filed Criminal Revision
B
No.333 of 1984 oefore the Patna High Court and the Hon'ble
High Court rejected the same.
19. It appears that various proceedings under Section 144
of Cr.P.C were initiated between the parties. Ultimately
c appellants claim to have filed Bataidari (Tenant) Case No.10
of 1995-96, 11 of 1995-96 and 12 of 1995-96 before the
appropriate authority. All the cases were heard together and
after hearing the parties Circle Officer came to a finding that
appellants are the tenant in respect of the disputed land and
D directed them to deposit money for creating Zamabandi in their
name and which they did. In support of this assertion, the
appellants were referring to two orders dated 13.06.1995 and
15.10.1995, issued in Bataidari Case No.10 of 1995-96. In
view of such proceeding, the respondents herein filed Criminal
E Miscellaneous Case for quashing those proceedings and
various criminal proceedings were initiated between the parties.
Ultimately before the Court of Third Additional Sessions Judge
(E.C.) Motihari, the criminal revision was filed by the appellants
challenging the order dated 27.07.1992 passed by Executive l
F Magistrate and the said criminal revision was dismissed.
Challenging that order, the petition under Section 482 of Cr.P.C
was filed before the High Court. The order of the High Court
which was passed on that 482 petition has been challenged
before this Court.
G 20. It appears from the impugned order that the High Court
did not consider the effect of the relevant provisions of Bihar
Tenancy Act (hereinafter referred "to the said Act") and the
ambit of Section 145 of the Criminal Procedure Code. It has
been held in Badri Yadav Vs. Sat Narain Das and others -
H 1993 Supp. (2) SCC 347 that whether a person is Bataidar or
BHARAT PRASAD & ORS. v. STATE OF BIHAR & 317
ORS. [ASOK KUMAR GANGULY, J.]
not rests on a "pure factual investigation and the record of the A
case".
21. In the instant case clear finding has been arrived at that
the appellants are Bataidars. Such a finding has been arrived
at under the provision of the said Act which is a special law.
B
The provisions of Section 48E of the said Act provides for a
complete machinery for enquiry into the rights of a Bataidar and
t- also provides for some protection. Section 49C also imposes
some restriction on the transfer of such rights which is created
in favour of the tenants. So provisions of Section 48E and those
of Section 49C supplement each other. c
22. The legislative purpose in enacting the provisions of
Section 48E of the said Act is to ensure that the disputes
• between raiyats and under-raiyats are settled as amicably as
possible and for that, detailed machinery has been provided D
under Section 48E of the said Act. In continuation of such
legislative scheme Section 48E (13) has provided as follows:
''Save as expressly provided in this Act, no Civil or
Criminal Court shall have any jurisdiction over the subject
E
matter of a dispute after a proceeding is initiated under
sub-section (1) by the Collector:
. Provided that nothing in this sub-section shall be
deemed to affecnhe power of a Criminal Court to take
such action as may be necessary for preventing breach of F
the peace pending the final disposal of the proceeding by
the Collector."
23. In this context Section 5 of the Code of Criminal
Procedure may also be noticed and which provides as follows: G
"Nothing contained in the Code shall, in the absence of a
specific provision to the contrary, affect any special or local
law for the time being in force, or any special jurisdiction
or power conferred, or any special form of procedure
prescribed, by any other law for the time being in force." H
318 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 24. It cannot be doubted that said Act is a special and local
•
law in the sense it is confined within the State of Bihar. If we
read the provisions of Section 48E (13) of said Act as against
Section 5 of the said Code, it will be clear that the effect of
Section 5 of the Code of Criminal Procedure is to render the
B provisions of the Code of Criminal Procedure inapplicable in
respect of all matters covered by such special law. [See Ajmer
Singh and Others Vs. Union of India and Others - 1987 (3)
sec 340 (para 7 page 343)].
25. Similarly, construing Section 5 of the Code, the
C Constitution Bench of this Court held in Maru Ram Vs. Union
of India and others [(1981) 1 SCC 107]:
"If a special or local law exists covering the same area, this
latter law will be saved and will prevail."
D
26. Sub-section 13 of Section 48E of the said Act makes
it clear that no Civil or Criminal Court shall have any jurisdiction
over the subject matter of a dispute after a proceeding is
initiated under sub-section (1) of the Collector.
E 27. In the instant case, admittedly a proceeding under
Section 48E was initiated and it terminated in favour of the
appellants holding their rights as Bataidar. The said adjudication
has become final.
F 28. However, sub-section 48E (13) has a proviso to the
effect that nothing in this sub-section shall be deemed to affect
the power of a Criminal Court to take such action as may be
necessary for preventing breach of the peace pending the final
disposal of the proceeding by the Collector.
G As in this case the proceeding under Section 48E has •
been finally decided, this proviso cannot be pressed into
service.
29. Here, after the proceeding has become~final and the
H rights of the appellants have been declared, repeatedly
BHARAT PRASAD & ORS. v. STATE OF BIHAR & 319
ORS. [ASOK KUMAR GANGULY, J.]
provision of Sections 144 and 145 of the Cr.P.C have been A
" invoked to disturb the rights which the appellants have acquired
in the Bataidari proceedings. But the main provisior.s of
Section 48 (13) have been enacted to protect the Bataidari
" .
rights of the parties and that is why it provides for an exclusion
of the power of the Civil and Criminal Court over such rights. B
This is keeping in tune with the principle of distributive justice.
Similar provisions have been made in various land reforms laws
;.,
of different States. The Courts while construing the provisions
of such socio economic legislation must interpret them in a
manner which furthers its purpose rather than frustrates it. c
30. The only argument of the respondents is that some of
the appellants by Ezabnama gave away the rights in favour of
the respondents. It may be noted that under Section 49C of the
said Act restrictions are imposed on transfer of rights by under
raiyat and if such a transfer is made, that is void. Apart from D
insisting on such transfer, which apparently is violation of the
statute, no other argument was made by the learned counsel
for the respondents.
31. In this case,, proceeding of Bataidari under Section E
48(1) (E) was over and there was no pending proceeding.
Therefore, proviso of Section 48E (13) is not attracted. In view
of the main provision in Section 48(13) of the said Act
tI' jurisdiction of Criminal Court cannot be exercised in view of the
express ouster. F
32. In the case of Kunjbihari Vs. Bairam and another -
(2006) 11 SCC 66, a three-Judge Bench of this Court has held
where rights of the parties have already been adjudicated upon
by a different forum, the parties must respect that finding. In such
a situation proceeding under Section 145 is not to be initiated G
to disturb the finding. In that case the High Court in a proceeding
under Section 482 of Cr.P.C refused to quash the 145
proceeding. The same thing has been done here. However, this
Court allowed appeal by setting aside the High Court's order
as also directing that Section 145 proceeding be dropped. H
320 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 33. In this case, this Court is of the opinion that if the
respondents are aggrieved by the findings reached in the
Bataidari proceeoing they have the statutory right of the appeal
to be exercised according to law. Without doing that the affect
of Bataidari proceeding cannot be scuttled with the subterfuge
B and juggle of 144/145 proceedings. In the facts of this case,
such a proceeding is an abuse.
34. For the reasons discussed above, we find that the High
Court has not approached the legal issues involved in this case
C in their correct perspective nor considered the affect of Section
48E or sub-section (13) of the said Act on a 145 proceeding.
35. Therefore, we quash the High Court's order and also
the 145 proceeding. The appeal is allowed. There shall be no
order as to costs.
D
D.G. Appeal allowed.
t.,
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