F.E. Chrestien vs Carter

Dhavle, J.—This is an application in revision against an order passed against the petitioner, as first party in a proceeding u/s 144, Criminal P.C., requiring him to abstain from going to a certain plot of land which he purchased in November last and from altering its present condition by building, as he proposed to do, a mica godown on it. The petitioner, Mr. F.E. Chrestien, is a mica trader with whose name one is familiar from the law reports. The opposite party is a manager or servant of the Maha. raja Bahadur of Gidhour. Mr. Chrestien appears to have purchased and taken a Court dakhal dehani of the Chakia estate in 1934. The Maharaja Bahadur of Gidhour had purchased widow''s estate in this property, but that estate came to an end in 1907. He claims however to have had a mukarrari interest in the estate since 1888 and his contention was that by reason of the mukarrari Mr. Chrestien is not entitled to recover any rents from the raiyats of the village Batia which is a part of the Chakia estate and in which the land in dispute lies.

When Mr. Chrestien, by his manager Belong, proceeded to build on the plot in question (41 out of 71 of plot No. 1362) Mr. Carter, the opposite party, as the learned Magistrate puts it, ''saw in this move the seed of a serious trouble between the Maharaja Bahadur and Mr. Chrestien." There had been previous litigation between the parties, in which the question of the mukarrari claimed by the Maharaja was left open by mutual consent of the parties; and the learned Magistrate says that "there has been no decision of a competent Court between the Maharaja and Mr. Chrestien" on the validity of the Maharaja Bahadur''s claim as a mukarraridar. On the strength of his alleged possession however, the Maha. raja Bahadur suspected the move of Mr. Chrestien in the making of what he calls a mica godown, and apprehended that Mr. Chrestien was simply trying to enter the village on some pretest with the real intention of taking possession of the village. This position of the Maharaja Bahadur was accepted by the trying Magistrate who said in his judgment that if Mr. Chrestien had stated that he had no other intention but to start a mica godown, the matter would have been clear and no order u/s 144, Criminal P.C. would have been necessary.

But on the ground that the mica godown was only a pretext, "certainly a very doubtful move" in consequence of which the Maharaja Bahadur "naturally smells some trouble," the learned Magistrate considered it best to "maintain the status quo and leave the real issue to be fought out in Court," adding that

the best way of avoiding a real clash between the rival claimants is to stop the doing of a new thing which might occasion a trouble.

In the reply to the grounds taken in the application in revision, the learned Magistrate states that if no action had been taken either by the police or by the Magistrate the men of Maharaja Bahadur would have actually opposed the construction giving rise to serious trouble." He also says that the assertion of a mukarrari right by the Maharaja Bahadur and its denial by Mr. Chrestien "had led to trouble admittedly in 1935" and that the present action of Mr. Chrestien was obviously a new approach to the old question. It thus seems clear that the Magistrate passed an order against the petitioner u/s 144 not because he held that Mr. Chrestien had no right to build a mica godown on the land recently purchased by him but because he thought that if Mr. Chrestien went on with the building, the Maharaja Bahadur would naturally oppose it under the apprehension that Mr. Chrestien''s real intention was to take possession of the village notwithstanding the Maharaja Bahadur''s mukarrari. There could not, of course, be any question that Section 144 does not authorize interference with private rights in proper circumstances. Mr. Das who appears on behalf of the Maharaja Bahadur has urged that the land purchased by Mr. Chrestien is agricultural land and that Mr. Chrestien would not be doing a lawful act in erecting a mica godown on it. It seems to me however that the act of Mt. Chrestien in building a mica godown on the land though it may possibly be assailable in the Civil Court is not an act of the kind which the Maharaja Bahadur would be justified in opposing by force. The learned Magistrate thought of maintaining the status quo, as he called it because three years ago there was a similar order passed against Mr. Blong u/s 144 at the instance of the Maharaja Bahadur; and the vice of this reasoning is that it involves a definite abuse of Section 144.

As long ago as 1879, it was pointed out in Abdul v. Lucky Narain Mandal (1880) 5 Cal. 132 that

an order made u/s 518 (corresponding I find to the present Section 144) is not bad simply because lit interferes with the legal rights of individuals; but when such interference is necessary, it is the duty of the Magistrate to limit it as much as possible; and for the purpose he should afterwards hold an enquiry into the circumstances, and determine whether as a matter of fact the act prohibited as likely to lead to a breach of the peace is within or in excess of the legal right of the person forbidden to do it. If it is found that a man is doing that which he is legally entitled to do and that his neighbour chooses to take offence thereat, and to create a disturbance in consequence, it is clear that the duty of the Magistrate is not to continue to deprive the first of the exercise of his legal right but to restrain the second from it legally interfering with that exercise of legal rights.

Mr. Blong was subjected to an order u/s 144, three years ago I understand, on the same ground as has been now adopted, namely the alleged mukarrari and possession of Maharaja Bahadur of Gidhour. That order was the subject of an application in revision to this Court, but Macpherson J. refused to entertain it on the ground that the operation of that order had already expired. The Magistrate''s order in the present case was passed on 26th January 1938. It was taken up in revision before the District Magistrate who on 22nd February decided, resting his order even more definitely than the trying Magistrate on the fact that Mr. Chrestien''s men were prevented from causing trouble by an order u/s 144 passed two years ago. An application against the orders of the lower Courts was filed on 25th February, and was admitted by Manohar Lall, J. on 1st March before the expiry of two months from the order of the Sub-divisional Officer of Jamui.

It is therefore impossible now to dispose of the matter merely by saying that the order has spent its force, and that course is further definitely contradicted by the obvious misconception of the lower Courts as regards the application of Section 144. It has been repeatedly pointed out that it is not open to a Magistrate by passing repeated orders u/s 144, Criminal P.C. to avoid the decision of a dispute which may be appropriately dealt with u/s 145 or Section 107, Criminal P.C. and that the power given by Section 144 is essentially an emergent power which has sometimes to be passed in disregard of private rights. An order of that kind cannot possibly be allowed by repetition to spell a more or less permanent interference with private rights; and the Sub-divisional Magistrate would have done well to bear this aspect of the matter in mind before he decided on the present occasion to pass an order u/s 144 in reliance on the fact that an order under this Section had been passed three years previously against Mr Chrestien''s men.

Mr. Das urged that there are on record many rent decrees obtained by the Maharaja Bahadur of Gidhour against the tenants of this mauza from 1913 onwards, and that the Maharaja Bahadur has succeeded all along in the Courts in his litigation connected with this mauza. It is however not pretended that to any of the litigation Mr. Chrestien was a party. He had also referred to an undertaking that is said to have been given by the tikait of Chakia, the predecessor-in-title of Mr. Chrestien but this was in 1934 before Mr. Chrestien came into possession of the property as the mortgagee auction purchaser of the estate. That undertaking, such as it was, is clearly not binding on Mr. Chrestien. Mr. Das has also urged that if, in view of the possession of the mauza by the Maharaja Bahadur of Gidhour as mukarraridar, the lower Courts have come to the conclusion that Mr. Chrestien''s or Mr. Blong''s attempt to build a mica godown on the land is only another pretext for taking possession of the mauza, that is a finding of fact which gave them jurisdiction and which ought not to be lightly interfered with by this Court in revision.

But as I have pointed out, the reasoning of the lower Courts in the application of Section 144 on the present occasion is essentially wrong. The interference with Mr. Chrestien''s private rights by an order u/s 144 in 1935 does not warrant similar interference again without the Magistrate taking the trouble to find out who is really in possession. A party against whom an order is passed in proceeding u/s 145 has to go to the Civil Court and cannot, unless he does so, be heard to repeat his claim in the Criminal Court. The position when an order is passed u/s 144 is quite different; such an order decides nothing about the respective rights of the parties and may be no more than an interference with private rights required in a temporary emergency: see Munnilal v. Gatti Ahir A.I.R (1925) Pat. 514 and Gita Pursad Singh v. Emperor A.I.R (1925) Pat. 17.

To repeat such an order on the ground of maintaining the status quo is to compel the unsuccessful party to resort to the Civil Court even though the Criminal Court may have done nothing to look into the rights of the parties, and further, indirectly to prolong the effect of the original order beyond the period of two months fixed in Sub-section (6) of the Section. Such a use of the Section is altogether unwarrantable. The order of the lower Courts must, therefore, be set aside.