1968 P Cr (PLP)

"That your petitioner submits that the value of the paddy grown by your petitioner in the disputed land may. be assessed approximately at Rs. 4,000 and if the paddy is not harvested within 10 days the whole production will be wasted." When the serious allegations were pointed out to Mr. Azizul Huq, he saw reason and conceded that in fairness to all concerned, the Receiver should be changed and the crops should remain in the custody of the Court after harvesting the same pending hearing of the rule. In these circumstances, I directed the Sub‑Divisional Magistrate, Madaripur to appoint a new Receiver and to place all amounts lying with the old Receiver at the disposal of the new incumbent and also to take all necessary steps for the preservation, of the crops in question. In pursuance of the said order dated 20th March 1967, the Sub‑Divisional Magistrate, Mr. Muhammad Ali, sent a report to the 2nd Assistant Registrar intimating the appointment of Circle Officer (Revenue) new Receiver in place of the Officer‑in‑Charge, Goshairhat Police Station. The Sub‑Divisional Magistrate also informed that he at once provided the new Receiver with police help and deputed a Magistrate to be on the spot during harvesting for preservation of huge quantity of food crops. He deserves appreciation for commendable promptitute and alacrity with which he acted in the matter. The Sub‑Divisional Magistrate also forwarded a report of the Circle Officer (Revenue), Goshairhat, A. Bashar Khan, wherein it is stated: "The actual account of the paddy cannot be given at present till the work of harvesting is completed. I think more than 500 mds. of boro paddy may be preserved if the paddy in question can be harvested peacefully." The statements made in paragraph 12 of the petition in which has been claimed that the settlement was made illegally and without notice, have been denied by Makbul Hussain by an affidavit material part of which reads as follows:‑ "I deny the statement made therein and say that the petitioner and his partymen never approached the Receiver nor tried to restrain him from executing the auction bid and they never offered Rs. 10,000 for the said auction. I further say that notice was published duly and the said auction was held legally in which 5 or 6 bidders joined in the said auction." It is interesting to notice that in paragraph 20, of the said affidavit of the lessee it has been asserted that the statement is true to the knowledge of the deponent Makbul Hussain Molla." It is not understood how Makbul Hussain could have the knowledge that the petitioner never approached the Officer‑in‑Charge, Goshairhat Police Station. The statement has been made in a wreckless manner and it is unworthy of any credence. Although a rule was issued on the Officer‑in‑Charge of the Goshairhat Police Station, he never appeared in this Court to deny the allegations made. There are, however, two reports submitted by him. His first report is dated 22‑10‑66, in which he merely informed the Court that settlement of attached lands had been made by him by public auction. In this report he did not even pray confirmation. He merely said "this is for favour of kind information". His second report is dated 20‑11‑

66. It was submitted in response to the direction of the Magistrate who called for a report on receipt of the complaint of petitioner Abul Hashem. It is stated by him that 22‑10‑66 was fixed by him for auction and he circulated the news through the Chairman of the neighbouring Union Councils and he held the auction on that day at Daser Jangal Bazar after observing all formalities and settled the lands with the highest bidder at Rs.

850. Although he stated that the papers would prove settlement by public auction, be submitted none. In support of the settlement he has also asserted that the self same lands were auctioned by him for Ra. 800 in the previous year Although not asked as to who has grown the paddy, the said Sub‑Inspector Ghulam Rasul, took pains to report, "lessee Makbul Hussain and his men had already sown boro paddy on the attached lands after taking lease." The Magistrate did not investigate into the allegations made by the petitioner. The President of Ex‑Military Man's Association, Madaripur, also filed an application that the said Sub‑Inspector Ghulam Rasul held the previous auction without notice to any one. In view of these allegations about the first auctions, he should have been careful on the present occasion. Abdul Wahab Dhali opposite‑party No. 7, also filed an application before the Magistrate. In that petition it was asserted that the Receiver in collusion with Makbul Hussain Molla settled the land privately and that when the said Abdul Wahab approached the Officer‑in‑Charge, he did not give any direct reply. He also says that he has offered 8/ 10 thousand rupees for the said settlement. This petition was filed before the Magistrate on 14‑11‑

66. Mr. S. A. Rahim learned Advocate appearing for Abdul Wahab supports the allegations made by petitioner Abul Hashem. Mr. Ruhul Islam learned Advocate for the petitioner, argues that the order of the Magistrate confirming the auction is illegal inasmuch as it was made without taking into consideration the materials referred to above but Mr. Azizul Haq invites me to hold that the Receiver had all the powers to settle the land and even if it is insisted that he should have taken prior permission, the confirmation of the Magistrate has cured the defect. He also relies on observation of the learned Additional Sessions Judge that "on petitioner's own showing they went to offer higher bid. It was not accepted. This means that either the petitioners got the notice or at least they were aware of the proceeding from before." This observation of the Additional Sessions Judge has no basis. Mr. Azizul Haq also failed to show anything to justify the observation that on their own showing the petitioner was present at the auction. I examined the record thoroughly, There is no such statement by Abul Hashem. The petitioner clearly stated that he offered higher bid when they learnt about it after settlement. The learned Judge fell into this error owing to failure to read the statement carefully and non‑application of mind. The land in dispute covers an area of 800 acres, that is, 2,400 standard bighas of land have been settled at Rs.

850. That shows that the premium for 3 bighas will be about one rupee only. Even the lessee Makbul Hussain stated in his affidavit that the price of the paddy will be about Rs. 4,

000. The Circle Officer (Revenue), however, reported that although "major portion of boro paddy of the attached lands bad already been taken away" he expected to harvest 500 maunds of paddy. Deplorable inadequacy of the premium is therefore patent on the face of the record. To say the least, it is indeed shocking. The settlement was made without prior permission of the Court and after settlement also, Sub‑Inspector Ghulam Rasul did not enclose any bid sheet with his report as was done in the previous year. It seems that the said Sub‑Inspector thought that he could deal with the property in any manner he liked. He did not also submit any bid sheet or other papers along with his report which he submitted in compliance with the direction of the Magistrate who called for one on receipt of the complaint of petitioner Abul Hashem. He took courage to say that possession was given to the lessee who according to him, had already sown boro paddy. He did not even think that any confirmation was necessary. He asserted that a regular auction was held but no bid sheet was forwarded with any of his reports nor any copy of the notice of auction circulated among the Chairmen‑of the Union Councils was sent to the Magistrate. Had there been really any auction after due publicity, he would have submitted to the Court bid sheet and other papers soon after auction. On these grounds, I hold that the reports submitted by the Sub‑Inspector Ghulam Rasul are not true and I unbesitatingly accept the statement of the petitioner Abul Hashem that no auction was held with notice to people of the locality. The impugned order of the Magistrate will show that he confirmed the settlement without applying his mind to the matter. I now quote the impugned order in extenso: "21‑12‑

66. Only 4 parties are present. One petition by Ali Asrab and others for inclusion as 9th party. Allowed. Amend the proceeding. Seen the report of Receiver and heard. The prayer of 1st party is for not accepting the bid of the receiver. Seen the report of the receiver and I have no reason to interfere. The bid of the receiver is accepted and the prayer of the 1st party is rejected. To 31‑1‑67." This order is undoubtedly illegal, for, it has been made without any application of mind and without consideration of relevant materials. It is therefore an arbitrary order. The Magistrate throughout the proceeding has shown lack of attention to the large area of lands involved in this proceeding. He drew the proceeding on 12th March 1966 and appointed Circle Officer (Rev.) Goshairhat as Receiver but, six days after, that is, on the 18th March, the said Circle Officer who asked for police help was changed by him without assigning any reason. He then appointed the Officer‑in‑Charge as the new Receiver. This change of the Receiver was again arbitrary. The Circle Officer never wanted to be relieved of his duties. Subsequent events show that he was fully justified in asking for police help in this case. I shall now consider Mr. Azizul Huq's contention that the Receiver is fully empowered under the law to make settlement and he does not require confirmation of the Magistrate. This contention of the learned Advocate is without any substance. Section 145 of Code of Criminal Procedure is silent about the appointment of Receiver. Even though no prohibition can be spelt out, there is no provision for its appointment either until the stage of 146 of the Code is reached. A Magistrate while holding an enquiry under section 145 may, however, "attach the subject of dispute pending his decision under this section," as laid down in the second proviso to subsection (4). Section

145. Mr. Azizul Haq was apparently thinking of the power of a Receiver under section

146. The appointment under section 146 of the Code takes place when after full enquiry under section 145, a Magistrate reaches the conclusion that none of the parties was in possession of the disputed property or he is unable to find as to which of them was then in possession of the disputed property. Even a Receiver under section 145 cannot have more powers than one appointed under the Code of Civil Procedure. A Receiver is not the owner of the property. He is merely an officer of the Court and performs such duties as are assigned to him by the Court. After having found that there is no express provision for appointment of a Receiver under section 145 of the Code, I should indicate as to what a Magistrate should do after an order of attachment under section 145 is made. By such an order of attachment under subsection (4) of section 145 of the Code, the Court takes the disputed property into custody. It will, therefore, appoint a person who will work as the servant or agent of the Court for the management of the property and he shall always work under the control and supervision of the Magistrate. It is not very appropriate to call him a receiver. There is, however, no objection to call him a Special Officer. The word "Receiver" is, however, used as a matter of general practice to signify only the nature of his work. There cannot be objection to the use of such a name so long as the officer keeps himself within his bounds. It should always be remembered that even a Receive appointed under the Code of Civil Procedure cannot make any settlement of the property without the permission of the Court. The views expressed by me find support in the case of Ramesh and others v. Nachiappa Chetlim and others (A I R 1951 Mad. 764). In that case Somasundaram, J., observed: "As pointed out by Sankaran Nair, J., in I C 759; 13 Cr, L J 295 Mad, the Receiver or Officer appointed under section 145(4), Cr. P. C. has not got the same power as Receiver under section 146, Cr. P. C. In the latter case, he has all the powers of a receiver appointed under Civil P. C. but in the former case his powers are limited and they are restricted to the taking into custody of what is on the land and disposing it of under the orders of the Magistrate. There can, therefore, be no leases by the Tahsildar appointed to attach the land. But it is open to him to take security from those who are willing to give highest security. Whoever cultivates the land after giving such security does so under orders of Court and will abide the orders of the Court." In the case before me, therefore, settlement made by Sub‑Inspector Ghulam Rasul is wholly without jurisdiction. The Magistrate could authorise some persons to cultivate the land) and take security from them for the purpose or if the Magistrates authorised an officer in this behalf he could have also done so. To the same effect is the decision in the case of Diwan Chand and others v. Emperor (A I R 1929 Lah. 223), in which Dalip Singh, J., observed: "So far as the point referred to by the learned Sessions Judge is concerned, the two rulings cited by him are directly in point. Counsel has referred to a ruling of a Single Bench of the Madras High Court, Abdullah Khan v. Kanchaiya in support of the proposition that a receiver can be appointed even under section 145, Cr. P. C. I do not think that the ruling really means to lay down anything of the kind but if it does, then I would prefer to follow the other rulings cited by the learned Sessions judge one of Madras and one of Patna High Court. I, therefore, hold that the order appointing a receiver was ultra vires and without jurisdiction and I set it aside." In the case of Maung San U v. Maung Su Gale (A I R 1938 Rang. 88), Mackney, J. observed: "Whilst I think it advisable not to employ the term "receiver" owing to the possibilities of misunderstanding that may arise yet I think it is clear that if the Magistrate's attachment is to be effected he must put some person into possession of the property, who will have authority to maintain his possession." Since the practice of appointment of a receiver under section 145 of the Code is found in many cases, I would also refer to the case of Dashrath v. Tarachand (A I R 1925 Nag. 197). In that case it was held: "If in order to prevent a breach of peace it is necessary for the Magistrate to take possession of the attached property and manage it during the pendency of the proceeding it is quite competent to him in his administrative capacity or in exercise of his inherent jurisdiction to appoint some person to manage the property on his behalf and subject to his control and supervision but the person so appointed is in no sense a receiver but merely a servant of the Magistrate that is, he has no power which a Receiver appointed under section 146 can exercise." ' In the case of Srinivash Pillai and others v. Sathayappa Pillai (13 Cr. L J 295), Shankaran Nair, J., of Madras High Court has held that a receiver appointed under section 145 of the Code must be treated only as an agent or servant of the Magistrate whose order is only an administrative order passed for the management of the property. In the case of Mewa Lal and others v. Emperor (19 Cr. L J 249.), a Division Bench of the Patna High Court consisting of Mullick and Jawalaprasad, JJ., held: "Under section 145, Criminal Procedure Code, as amended a Magistrate has in cases of emergency the power to attach the subject in dispute but it does not appear that he has any power at that stage to appoint a Receiver." For the reasons stated above, the impugned order is set aside, proceeding under section 145 of the Code is directed to be disposed of as expeditiously as possible by the Sub‑Divisional Magistrate himself or by a Magistrate other than the Magistrate who made the impugned order. The Circle Officer (Revenue) Goshairhat appointed by the Sub‑Divisional Magistrate will continue to be in charge of the property as an officer of the Court and will act subject to its direction, supervision and control. The Magistrate will dispose of the paddy which is in custody of the Court by auction to be held in public in Court. If it is necessary to settle the land with some one for cultivation for the ensuing season, it should be done by the Magistrate by auction in Court after due notice to the parties concerned and by such public announcement as may be considered fit and proper by the learned Magistrate. It is claimed before me that opposite‑party No. 4 Makbul Hussain has grown the paddy now harvested. That statement is stubbornly denied by the petitioner who also filed an application before the Magistrate on 18‑3‑67, alleging that Makbul Hussain reaped away the paddy even after the order of this Court not to give any effect to the settlement made by the said Officer‑in‑Charge. The Circle Officer (Revenue) reported by his Memo. No. 35 dated 29‑3‑67 that major portion of the paddy had been reaped away. To that extent petitioner's allegation is supported. The Circle Officer has however not named any one in his report. The learned Magistrate will hold such enquiry as may be considered necessary in this matter. If it is found that Makbul Hussain has, in fact, grown the paddy and that his conduct is above reproach, that is, if allegations made in the said petition filed before the Magistrate on 18‑3‑67 are not proved, the Magistrate may pay him reasonable cost of cultivation out of the amount that may be obtained by sale of the paddy harvested. Now that the settlement has been cancelled, he will also be entitled to the refund of the amount of Rs. 850 paid by him as premium for the settlement. If, Makbul Hussain reaped paddy before the stay order was served on him or made known to him, reasonable cost will be paid and premium refunded to him only after deducting the price of such quantity of paddy as may be found by the Magistrate to have been reaped by him. The Rule is made absolute in the above terms. Let the records be sent down at once. Rule made absolute.