Gobardhandas Khakalia vs Chaturbhuj Khaklalia and Another

Ram Labhaya, J.—This petition of revision is directed against an order of the Deputy Commissioner, Nowgong, by which the application of the petitioner, who was the 1st patty in the Court of the learned District Magistrate for initiation of proceedings u/s 147, Criminal P. C., was disallowed.

The dispute leading to the proceeding from which the present revision petition arises relates to a small passage 17 inches wide between the house of the parties to the dispute. The 1st party, the petitioner, claimed the right of user over the disputed pathway. His case was that both the parties had agreed to reserve 8� strip of their land for the purposes of a drain. The entire land was also to be used as a pathway. On 3rd January 1950, the petitioner applied for an order u/s 144, Criminal P. C., directing the 2nd party to remove the obstruction put up by him along the drain. His case was that he had for the last 30 years maintained an open lane by the south of his building for the drainage of water as also for passage of men, sweeper and for removing night soil, etc The opposite party began constructing a house and tried to encroach on the said lane. The matter, however, was amicably settled on 10th February 1949. According to the arrangement then made a narrow lane about 17 inches wide was left open between the houses of the two parties. Each side surrendered 8�" from his land for the purpose of drainage and for use as a pathway by both the parties. Subsequently the 2nd party tried to put up a temporary moveable obstruction along the drain. The petitioner objected to their placing the obstruction. He further stated that the opposite party threatened to have recourse to violence if the petitioner tried to remove the obstruction which blocked the pathway. The dispute, he pleaded, was likely to result in a breach of the peace. On this petition, the learned District Magistrate addressed an order to the officer in charge of the police station directing him to keep the path open. He further ordered that both the parties should appear before him on 9th January 1960. The police officer visited the place on 5th January 1960. The opposite party asked for time till 8th January 1960 for removing the obstruction. They also stated that they were aware of the order of the District Magistrate and would carry out the same. On 6th January 1950, the opposite party put in a statement repudiating the allegations made by the petitioner in his petition dated 3rd January 1950 and they protested against the order which was served on them on 6th January 1960. On this, the District Magistrate ordered the to be put up on 9th January 1960. He also vacated his order passed on 3rd January 1960 and ordered that till then the obstruction placed by the opposite party was to remain. On 9th January 1960, he inspected the locality. After that without taking any evidence arguments were heard on 18th and 21st January 1950. The petitioner put in another petition requesting formal proceedings to be drawn up u/s 147, Criminal P. C., if the order passed on 3rd January could not he made absolute u/s 144, Criminal P. C. In this petition it was also alleged that a breach of the peace was imminent by reason of the dispute relating to the pathway in question between the parties. The final order was passed on 20th February 1960. In this order the learned District Magistrate considered the question whether proceedings u/s 147, Criminal P. C., be drawn up or not. The finding arrived at by him was that the dispute was with respect to a narrow passage about 17" wide between the houses of the parties. In his view, the passage could not have been put to any general use and was meant only for use of the sweeper. As a result of his spot inspection on the 9th, he also came to the conclusion that the opposite party had placed the obstruction and was not willing to give up his 8�" strip of land unless a latrine, which the first party had constructed, was removed from its present site. His reasons for declining to proceed u/s 147, Criminal P.C., are given in one passage of the judgment, which is as follows:

The question, however, is whether proceedings should be taken up u/s 147 or not. The latrine has just been constructed and was not in use when the second party raised the obstruction on their land. Can there be said to have been a danger to the peace at the time of the dispute ? I think not. There was no danger. There is none now unless the first party try to forcibly remove the obstruction; secondly, as the house was under construction for the last 9 or 10 months the path, if at all, was apparently not used for the previous three months, i. e., 147 (2) not attracted. I also think that S.147 is a negative section, i.e., certain acts under certain circumstances maybe ordered not to be done. Here the second party had already raised the obstruction on their land; its removal could not be ordered.

In holding that the removal of the obstruction could not be ordered, the learned District Magistrate was influenced by a decision of their Lordship3 of the Calcutta High Court reported in Hem Chandra Banerji Vs. Abdur Rahaman, He warned the petitioner not to take any action which may lead to a breach of the peace.

Mr. Ghose has assailed the correctness of this order. He urges that the procedure adopted by the learned District Magistrate is opposed to the provisions contained in Section 147, Criminal P. C., as also to the principles of natural justice. He gave no opportunity to the petitioner to substantiate his allegations and instead of merely declining to draw up prooeeding3 u/s 147 entered into the merits of the controversy without passing a preliminary order and came to certain findings on points which could have been considered only after the proceedings had been initiated. He even warned the petitioner against doing anything which may lead to a breach of the peace. The order, according to him, is not only illegal but in excess of jurisdiction.

Before I proceed to consider the contentions raised on behalf of the petitioner, I propose to deal with a question of procedure raised by Mr. Medhi for the opposite party. This petition was filed in this Court directly. The Sessions judge was not moved at all. He has concurrent jurisdiction with this Court to entertain a revision petition under S.147, Criminal P. C. He however, could not pass final orders on the petition. In spite of this the practice which is followed in the majority of the High Courts in India is that petitions of revision against order under chap. XII are not entertained if the Sessions Judge has not been moved in the first instance. This practice tends to administrative convenience and from a purely judicial view point also nothing can be said against it except that in certain cases of an exceptional nature speedy interference may be desirable in the interest of justice and resort to the High Court for redress may be justified. In these circumstances agreeing substantially with the view of Findlay O. J. C., expressed in Bajirao v. Mt. Dadibai A. I.R.1926 Nag. 285 : (27 Cri. L. J. 71 I hold that the High Court should not ordinarily entertain petitions of revision like the present one under Chap. XII, Criminal P. C., unless the lower Court has been moved in the first instance though it should not hesitate to do so if extraordinary and special circumstances are shown to exist which justify departure from the normal course.

In this the petition was admitted on the ground that there was no settled practice of the Court. There is no point in returning the petition for presentation to the Sessions Court at this stage and I shall, therefore, dispose it of on the merits, particularly in view of the fact that the order in question has been passed without any inquiry.

On the merits, I am inclined to the view that the contention raised by Mr. Ghose should prevail substantially. Proceedings up to 18th January 1950 were u/s 144, Criminal P.C. On this data an application was put in by the petitioner by which it was prayed that the order of 3rd January be made absolute u/s 144, Criminal P. C., or in the alternative regular proceedings u/s 147, Criminal P. C., be drawn up. It appears from the final order of the learned District Magistrate that the petitioner did not press for action u/s 144, Criminal P. C., and therefore the only point considered in the order was whether proceedings u/s 147 should be initiated or not. The procedure to be followed on an application u/s 147 is given in Section 147 of the Code. According to this section if a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class is satisfied, from a police report or other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water as explained in Section 145, Sub-section (2) (whether such right be claimed as an easement or otherwise), within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims and shall thereafter inquire into the matter in the manner provided in Section 145. Section 145 (4) requires the Court to peruse the statements so put in hear the parties, receive all such evidence as may be produced by them respectively, consider the effects of such evidence, take such further evidence (if any) as he thinks necessary and then to decide whether the right claimed u/s 147 exists. If he finds that such a right exists, he may make an order prohibiting interference with the exercise of such right. An order under clause (1) of Section 147 requiring the parties in dispute to attend the Court can only be made if the Magistrate is satisfied from police report or other information that a dispute regarding the alleged right of user of land or water likely to cause a breach of the peace exists. If there is no police report or other information, ho may give the applicant a chance to satisfy him or he may ask for a report from the police. If from the material placed before him he is not satisfied about the existence of a dispute likely to cause a breach of the peace, there will be no justification for initiating proceedings u/s 147, Criminal P. C. On the other hand, even if a dispute likely to cause a breach of the peace exists, a Magistrate is not bound to proceed u/s 147. He is not bound to take proceedings under the section and may take action u/s 144 or S.107, Criminal P.C. But, ordinarily, the proper course for a Magistrate would be to take action under this section rather than to make temporary orders u/s 144 or Section 107, Criminal P. C., without any inquiry into the respective claims of the parties as held in Inderdeo Narayan and Others Vs. Durga Prasad Singh and Others,

In this case the learned District Magistrate set out to decide the question whether proceedings should be taken u/s 147 or not. He had, therefore, first to address himself to the question whether there was a dispute between the parties relating to the alleged user of land or water likely to cause a breach of the peace The learned District Magistrate appears to assume that the dispute does exist. As regards the question whether it was likely to cause a breach of the peace or not, he thought that there was no such danger and observed further that there was no such danger even on the date of his order unless the first party tried forcibly to remove the obstruction. To prevent this contingency be warned the petitioner not to take any action which may lead to a breach of the peace. The order read as a whole would indicate that the learned District Magistrate apprehended that there was likelihood of a breach of the peace also. This is clear from the fact that the learned Magistrate had to say that there would be no breach of the peace if the petitioner does not try forcibly to remove the obstruction. What he meant was that if the petitioner (1st party) tried to exercise his alleged right of user of the pathway, a breach of the peace would occur. This was exactly the petitioner''s case. He had alleged that he had the right of user in the pathway which had been obstructed and that the exercise of his right would lead to a breach of the peace. The order does not, therefore, embody a finding that there is no dispute between the parties or that dispute between the parties is not likely to cause a breach of the peace. Assuming, however, that the Court thought that there was no such dispute between the parties which could lead to a breach of the peace, the order should have been that as there is no dispute likely to lead to a breach of the peace no proceedings are necessary u/s 147. The learned District Magistrate did not adopt this course. He proceeded to examine the question whether the petitioner had been exercising the alleged right within 8 months before the date of his petition as required by proviso to Section 147. On this point he found that the pathway had apparently nod been used for the ''previous 8 months. He had no jurisdiction to consider this matter. He could go into this question only after passing the preliminary order under Clause (1) of Section 147. After the preliminary order he ought to have considered the written statement of the parties, should have given them an opportunity to adduce evidence and then he could come to some decision on the point. Without taking any evidence he has gone into the question which he had no jurisdiction to decide. There was thus not only lack of jurisdiction but the manner of exercising the jurisdiction was also patently illegal. He even went further and considered the question whether the obstruction placed by the second party could have been removed or not. This question too would not arise if there was no basis for the initiation of the proceedings. The learned District Magistrate in relying on Hem Chandra Banerji Vs. Abdur Rahaman, held that an order of the removal or obstruction could not be passed u/s 147, but he bad no jurisdiction to decide this question also. It could be considered only if the Court had reached the stage when it is to consider what order may be passed in the proceedings. According to the Calcutta view, an order prohibiting interference with the exercise of the right claimed by the petitioner can be passed under s.147. The authority therefore could not be utilised for throwing out the petition. The fact that the learned District Magistrate considered questions which could be considered only after passing of the preliminary order also indicates that the learned Magistrate felt that the petition could not be disallowed on the mere ground that there was no dispute about the user of land likely to lead to a breach of the peace. In fact, his last order under S.144 would indicate that he felt the necessity for immediate action. The order, therefore, is easily available on grounds of illegality and excess of jurisdiction.

The learned Counsel for the opposite party has contended relying on Manindra Chandra v. Barada Kanta 80 cal. 112 : (6 C.W. N. 417) that a Magistrate may not be directed to proceed u/s 147 if he has declined to proceed even if he passed his order without examining the applicant or allowing him an opportunity to substantiate his allegations. This case is distinguishable. In this case a Magistrate instituted proceedings u/s 145 and passed an order under Sub-section (1) of Section 145. After that he received information which led him to believe that there was no longer any dispute likely to cause a breach of the peace. On receipt of this information he cancelled his previous order. The parties had not yet put in their written statements. The High Court declined to interfere on the ground that the Magistrate had not acted without jurisdiction.

I do not see how this case can assist the opposite parties. If on any material the Court had come to the conclusion that there was no dispute likely to cause a breach of the peace, it could have been urged that the High Court should not interfere with a finding of fact arrived at by the Magistrate. But the position here is different. The learned Magistrate had declined to proceed u/s 147. In fact while holding that it is not necessary to initiate proceedings u/s 147, he has actually gone into matters which arise only after the initiation of the proceedings. He has thus exercised jurisdiction for which there was no basis. He has actually arrived at findings on matters which he could not examine before passing a preliminary order. This order, so far as these matters are concerned is without jurisdiction and the finding arrived at on these matters influenced his decision of the question whether proceedings u/s 147 should be initiated or not. This order, therefore cannot stand and the case must go back for its proper disposal.

The learned District Magistrate shall decide on the material that may be made available to him whether a dispute likely to cause a breach of the peace exists between the parties regarding the alleged user of any land or water. If such a dispute is found to exist, he shall exercise his judicial discretion in determining whether he should initiate proceedings u/s 147. If he decides to proceed under this section, a preliminary order as required by Section 147 (1) shall be passed. The subsequent inquiry shall follow the directions contained in Section 145 (4) so far as they may be applicable. It is only after the parties have been heard and their evidence taken as required by Section 145 (4) that the Court would proceed to determine whether the right claimed by the petitioner first party has been proved to exist. If the Court is satisfied about the existence of the right claimed, it shall pass an order prohibiting any interference with the existence of such right.

The petition of revision is allowed and the case is sent back to the learned District, Magistrate for disposal of the petition according to law and in the light of the directions contained in this order.