Abu Sayeed and others vs Damodar Prasad Tewari and another

Agarwala, J.—The facts of this case were as follows; Village Jamgaon is irrigated by the waters of the Chandan river which is some distance to its west. Waters of the river are taken to Jamgaon by a channel which, passes through several villages until it enters Jamgaon. The water flows into Jamgaon in four channels, all of which terminate within the boundaries of the village. The easternmost of these four channels flows into a kund, the greater part of which is situated in village Jamgaon and a portion of which is situated in the adjoining village Phulmaria. The maliks of Jamgaon crested a bundh in this kund for the purpose of raising the level of the water to enable them to irrigate their village. The inhabitants of Phulwari complained of this obstruction to the Subdivisional Officer. The latter visited the village and then issued an order under S. 133. Criminal P.C., against the maliks of Jamgaon directing them to remove the bundh by 12th July 1934 or to show cause by that date. On 12th July 1934 the latter party appeared and prayed for time which was allowed till the 18th. The order sheet shows that on the 18th lawyers of both parties were heard and the Jamgaon party was ordered to file a copy of the irrigation papers by the 28th. The papers were filed on the 28th and the Magistrate again visited the village on the 30th and then heard the arguments advanced on behalf of the parties. From the order sheet it appears that sixteen witnesses were examined on behalf of Phulwaria and eight on behalf of Jamgaon; and that the latter asked for time to examine more witnesses but this was disallowed.

From the Magistrate''s order it appears that the water of the kund, which, has been referred to, irrigates portions of Jamgaon and also several plots of Phulwaria. There is no finding in the order of the Subdivisional Officer, or in the order made by the District Magistrate in revision that the kund is a channel used by the public. S. 133, Criminal P.C., authorises certain Magistrates, on receipt of a police report or other information and on taking such evidence as the Magistrate thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, to make a conditional order requiring the person causing such obstruction or nuisance to remove such ?obstruction or nuisance or to appear and move to have the order set aside or modified. Under S. 135 the person against whom the order is made is given an option either to comply with the order, or to appear before the Magistrate and either to show cause against the order or to apply, for the appointment of a jury to try whether the order is reasonable or proper. S. 139A, which was introduced into the Code in 1923, requires the Magistrate, when the person against whom an order under S. 133 has been made has appeared before him, to question him as to whether he denies the existence of any public right in respect of the way, river, channel of place to which the order relates. If there is such a denial the Magistrate is then required to enquire into the matter before proceeding further. It may be mentioned that the order sheet of the Magistrate in the present case docs not show that he made the enquiry required by S. 139A. From the course of proceedings however it may be presumed that the party against which the order under S. 133 was directed, did deny the existence of any public right in the kund. Sub-S. (2). S. 139A provides that if in the course of the enquiry, which the Magistrate is required to make, the existence of any public right is denied and the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the existence of the right has been decided by a competent civil Court. The learned Magistrate in his order has stated that on behalf of Jamgaon eight witnesses were examined; but he has not Stated whether they were examined in support of the denial of the existence of the public right, nor whether their evidence is reliable. It is only in cases where he finds that there is no reliable evidence in support of the denial that he is empowered by Sub-S. 2. S. 139A to proceed further in the matter. On behalf of the opposite party it is contended that there was no reliable evidence in support of the denial of the existence of any public right to the kund in question, and it is argued that Sub-S. (3). S. 139A debars the petitioner in these circumstances from now denying the existence of public right. As I have already stated, the Magistrate''s order, while stating that eight witnesses were examined on behalf of Jamgaon, does not state whether such evidence is reliable, and does not contain a finding as to the existence of the alleged public right. Without finding either that a public right existed, or that there was no evidence in support of the denial of the'' existence of such a right, the Magistrate had no jurisdiction to make the order absolute. The order is therefore set aside.