G.MEHROTRA,C.J. - (1.) THIS is a petition under Section 439, Cri.P.C. The relevant facts are that the Burrabazar Market is situated within the town of Shillong. Within the market there is the Mylliem Siemship Police Station building. The property belongs to the siemship of Myiliem. U Jormanik was the Siem of Mylliem, appointed by the Governor of Assam under paragraph 19 of the Sixth Schedule to the Constitution. His appointment was approved by the District Council of United Khasi and Ja;ntia Hills. On 7th July 1959 the Executive Committee of the said District Council suspended U Jormanik with effect from 8th July 1959 and appointed one U Jum Singn as Acting Siem. The suspension order was challenged. By an order of the Supreme Court dated the 20th September 1960 the order of suspension dated the 7th July 1959 was held valid. Thereafter the Executive Committee of the District Council by its order dated the 15th October 1960 reaffirmed the suspension of U Jormanik and he was directed to hand over charge of the Siemship to the said U Jum Singh. During the regime of U Jor Manik's Siemship opposite party No. 1 U Lebanon Khatkoiigor, a Myntri to the Durbar, was appointed to be in ehargs of the said Bazar. On 26th October 1960 U Jum Singh, acting Siem of Mylliem, convened a Durbar and in that Durbar it was decided that the three Cabinet Myntries were to be replaced and U James Myntri who is petitioner No. before this Court, was put In charge of Bara Bazar in place of opposite party No. 1. On the 1st November 1960 petitioner No. 7 under instructions of the Acting Siem took over the collection of the tolls from the permanent stall -holders and others. On the 2nd November, 1960 the collectors made certain collection of tolls. On the 3rd November 1960 the Acting Siem applied to the District Magistrate, Shillong for police protection as the collection of toils by his nominee was being interfered with. The Subdivisional Magistrate, Shillong initiated proceedings under Srction 145, Cr.P.C. and police was directed to attach Barabazar and the Tliana. The Executive Officer, Shillong Municipality was appointed to act as official receiver of the Barabazar to manage the market and to collect the tolls. The petitioners before this Court were impleaded as first party in this proceeding and the opposite partios with some others were made second party. Parties were called upon to submit their written statements. Written statements were filed by both the parties in support of their respective claims. Though the parties filed documents in support of their case, the Sub -Divisional Magistrate by his order dated the 12th January 1981 declared possession of the second party U Lebanon (opposite party No. 1) and U Niha Singh (opposite party No. 2) on the Mylliem Thana Building and the Barrabazar market respectively and forbade any disturbance unto their possession until evicted therefrom by a competent court. The Sessions Judge was moved against this order by the petitioners. The Sessions Judge however by his order dated the 15th December 1961 rejected the petition holding that he has no jurisdiction in the matter', inasmuch as the order passed by the Subdivisional Magistrate purported to be in his capacity as Assistant to the Deputy Commissioner and thus the Deputy Commissioner was the proper authority to entertain this petition. The present petition has been filed against the order of the Magistrate. The order of the Magistrate is challenged on a number of grounds.
(2.) MR . Ghose for the petitioners contends that the dispute as regards the Siemship and the consequsnt right to manage the market is finally settled by the Supreme Court. There was thus no dispute in existence regarding an immoveable property and the question of passing an order under Section 145, Cri.P.C. did not arise. He secondly urged that the opposite parties claimed possession through the previous Siem and not in their own independent right. When the acting Siem appointed the other petitioners to manage the market and the validity of the appointment of the acting Siem could not be disputed, the petitioners had right to get possession and the right to remain in possession claimed by the opposite party could not be recognised. It was then contended that in view of the nature of the property, the question of the right to remain in possession was relevant to ascertain the factum of possession. The nature of the property is such that only constructive possession was possible and to decide as to which of the parties was in constructive possession, the right to possession had to be determined. The Magistrate was not right in holding that the inquiry as to the right of possession was barred in the circumstances of the present case. It was lastly contended that it there was any apprehension of the breach of peace, proceedings under Section 107, Cr.P.C. could be taken. But it was not a case for the exercise of powers under Section 145, Criminal Procedure Code. It is immaterial to decide the question whether the Magistrate took cognisance as an Assistant to the Deputy Commissioner under the provisions of the Rules for the Administrattion of Justice and Police in the Khasi -Jaintia Hills or as a Magistrate under Section 145, Cr.P.C. as in any view of the matter it cannot be argued that this Court has no jurisdiction to revise the order passed by the Magistrate. As held by this Court in its decision dated 19 -9 -61 in Criminal Revn. No. 57 of 1961, U Join Manick Syiem v. U Rose Mohan Roy Myntri : AIR1963Ori31 , the Assistant to the Deputy Commissioner has power to take action similar to the one contemplated under Section 145, Criminal P. C. in view of R. 22 of the United Khasi -JaintJa Hills Autonomous District (Administration of Justice) Rules, 1953.
(3.) THE admitted facts are that U Jormanik was the Siem of Mylliem. His appointment by the Governor was approved by the District Council, United Khasi -Jaintia Hills. On the 7th July 1959 the Executive Committee of the District Council suspended U Jormanik with effect from the 8th July 1959 and appointed U Jum Singh as acting Siern. The order of suspension was challenged and ultimately the Supreme Court by its decision dated the 20th September 1960 : AIR 1951 SC 276, T. Cajee v. U. Jormanik Siem declared that the order of suspension dated the 7th July 1959 was valid. The Executive Committee thereafter by its order dated the 15th October 1960 re -affirmed the suspension of U Jor Manik and asked him to hand over change of Seimship to the said U Jum Singh. U Jum Singh took charge on 17th October 1960. The contention of the petitioners is that U Lebanon Kharkongor, a Myntri to the Durbar who was placed in charge of Bara Bazar under the Siem -ship by U Jor Manik, was removed from the charge of the Bazar and petitioner No, 7 U James Myntry replaced him and was in charge of the Bazar. On the 1st November 1960 the petitioner No. 7 took charge of the collection of the tolls from the parmanent stall -holders and others, and he along with the Deputy Siem U Francis Siem who is petitioner No. 1, took charge of the thana in the Bara Bazar. U Lebanon then camo and interfered with the petitioners' right to collect tolls from the Bazar. Thereafter on the 3rd November 1960 the Acting Siem applied to the District Magistrate, Shillong for police protection in case collections were interfered with as on the previous day, i.e. 2nd November 1960. The Sub -Divisional Magistrate on that application after getting police report initiated proceedings under Section 145, Cr.P.C. and the Bazar was attached. The Executive Officer, Shillong was appointed to act as Official Receiver of the Bazar. It will thus appear that the Supreme Court finally determined that U Jor Manik's suspension was valid and thus any action taken by him as Siem for the management of the Bazar cannot bind the, newly appointed Siem. There was thus no bona fide dispute with regard to the market and Section 145, Cr.P.C. will not be attracted. It does not appear what independent right the oppoisite party U Lebanon can claim, apart from his appointment by U Jor Manik Siem as the Myntri in charge of the Bazar. ;