ORDER
Anant Singh, J.
1. This reference has been made by the third Additional Sessions Judge, Mr. Muneshwari Sahay, of Patna, for setting aside an order dated 4-11-1963 made by the learned Sub Divisional Officer, Dinapur Mr. M.C. Subarna. This order is to the following effect:
“I have seen the above order of Shri J.P. Srivastava. It is not necessary to file a regular complaint. Since the land in question has been settled with the applicant, B. D. O. Naubatpur with the help of o/c (officer-in-charge) Naubatpur will restore the possession to him and report compliance by 11/11.”
2. It appears that there is a plot of land bearing survey plot No. 545 under khata no. 136, tauzi No. 1206 in village Tarai. The trea of the plot is 0.07 acre, and it was Ghairmazura-Malik land before the vesting of the zamindari. The petitioners before the learned Additional Sessions Judge were some of the co-sharer landlords of the land, and they claimed to have been in khas possession of this land which they had amalgamated with their homestead plot No. 199, on which their house stood. This land was being used by them as a sahan of their homestead land.
3. The opposite party before the learned Additional Sessions Judge claimed to have taken settlement of this land from the State after the vesting of the zamindari. He alleged that be had constructed over this land a bouse, but it was demolished by the petitioners who took forcible, possession of the same. Some litigations cropped up between the parties and their men and the opposite party and his men failed in all the litigations.
4. The Block Development Officer of Naubatpur Block sent a letter on 10-7-1963 to the subdivisional officer, Dinapur, complaining that the petitioners had Forcibly demolished the house of the opposite party standing on the plot in question and requested that necessary action be taken against them. On 24-9-1968, however, the S.D.O. in charge ordered to issue notice to the opposite party to appear in court on 11-10-1963 for filing a complaint. Accordingly, on 11-10-1963, the opposite party appeared in court and he was directed by the subdivisional officer to file a regular complaint against the petitioner. On 4-11-1963, however, the learned subdivisional officer passed the impugned order.
5. I really cannot conceive how the learned subdivisional officer came to pass such an illegal order. Nowhere in the Code of Criminal Procedure or any other law, a sub-divisional officer has been authorised to make an order for restoration of possession over any land in favour of any aggrieved party, and that with the help of police force. It was a clear dispute of a civil nature between two parties and it had been so reported even by the Naubatpur police on 2-9-1963.
The letter of the Block Development Officer, Naubatpur, dated 10-7-1963 was put up before the learned subdivisional officer on 24-9-1963, when another Magistrate, Sri J.P. Srivastava, who was acting for the subdivisional officer on that day, directed for the issue of a notice to the opposite party to file a complaint against the petitioners. This was also an unwarranted step. A Magistrate cannot mix up judicial functions with his executive functions. Any Block Development Officer managing the properties of the State is as good as a private party, and only because a settlement of land is made by any Block Development Officer, its validity cannot be assumed for granted, and a Magistrate in exercise of his judicial functions is not called upon to aid and enforce the order of the Block Development Officer.
6. The impugned order was completely without jurisdiction and such an order could not have been passed by the subdivisional Magistrate, who had a duty to maintain law and order and not himself act against it The order of the learned subdivisional Magistrate is set aside,
the reference being accepted.