Judagi Raut vs Emperor

Mullick, J.—One Madho Lal obtained a decree against his lessees, the Kanti Indigo Factory, in respect of some lands in Mauza Dumaria. It appears that he apprehended trouble in obtaining possession and that the tenants in occupation of these lands were challenging his right to certain particular plots. He accordingly made an application u/s 45 of the Bengal Survey Act, alleging that there was a dispute regarding certain boundaries and that as the land had been previously surveyed and settled by a public survey he was entitled u/s 45 to ask the Collector to relay the boundaries. The Collector sent out an amin to do the work, but when the amin arrived he was resisted and two men belonging to his party were assaulted with lathis. The amin was also taken by the neck and thrown out of the land. It appears that a Civil Court Commissioner had gone at the same time to execute a Civil Court decree. He appears to have discreetly stood outside, but a garriwallah belonging to his party and other men went to the rescue of the Civil Court amin and were also assaulted with lathis. The present proceedings were then instituted, with the result that the petitioner before us have been convicted under Sections 147 and 353 read with Section 149 of the Indian Penal Code to rigorous imprisonment for six months.

The present Rule was issued, firstly, on the ground that the amin was acting without authority and secondly, on the ground that the sentences were too severe.

Now with regard to Section 45 of the Survey Act, it is urged that that section is not at all applicable. Now reading that section as it stands, it is quite clear that it is couched in the widest terms and that all that it requires is that the Collector should be satisfied that a dispute exists in regard to a boundary settled in a previous public survey. Those conditions were satisfied in the present case and, therefore, the deputation of the amin was perfectly legal.

Then it is urged that the amin should have issued a proclamation before proceeding upon the land as required by Section 6 of the Survey Act Now although the latter pari of Section 45 states that an amin in making the demarcation shall have all the powers conferred by Section 6, it nowhere says that he shall previously make a proclamation as required by that section. In my opinion, the proclamation required by that section refers only to a survey carried on under Sections 4 and 5 of the Act. Then it is also urged that the amin showed a notice to the petitioners in which it was stated that the survey was to be completed by the 27th June 1915, and as the occurrence took place on the 23rd December 1915 he had no authority to enter upon the land. The law apparently did not require the amin to show any notice to the petitioners. It appears to be a fact that the original time allowed was extended by the Collector and that the amin was within his authority.

The petitioners were not entitled to resist the amin simply because the time which appeared upon his warrant had expired. There is, therefore, no legal flaw in the amin''s proceedings. The only other consideration which has been pressed upon us is that the sentence is too severe; but having regard to the fact that the petitioners were opposing not only the Revenue Authority but also the Civil Authority, I cannot admit that the sentences are too severe. It appears also that subsequently in February 1916 when the Civil Court did give possession to the decree-holder, it was necessary for the decree-holder to take the precaution of being accompanied by an armed Police force. The proper course for the petitioners, if they were dissatisfied with the amin''s proceedings or if they thought that in execution proceedings between the decree-holder and the factory to which they were no parties it was incompetent for the amin to demarcate their land, was to go to the Civil Court and to lay an objection. They certainly took a very great risk in attacking the Revenue and the Civil Authorities simply for the reason that they were not parties to the original suit. Moreover so far as the amin was concerned, he could not possibly have given possession and the petitioners were in no way damnified by his acts. The result is that the conviction and sentences should, in my opinion, be affirmed and the application rejected.

Jwala Prasad, J.

I agree with the orders proposed by my learned brother.