Mahadeo Dutt and another vs J.N. Sarkar

Jwala Prasad, J.—This is an application against an order of the Magistrate of Giridih passed under Sec. 145 of the Code of Criminal Procedure in favour of the first party. The Magistrate has recorded the following order.

"I am satisfied on a consideration of all these points that the first party were in actual possession of mica mines and mica deposits within Bishun Tikar village on the day and prior to it when these proceedings were started. I accordingly order that the first party is entitled to possession of the aforesaid mica mines and mica deposits and forbid their disturbance of such possession until evicted therefrom in due course of law."

The order is objected to by the second party. It is said that the original proceeding drawn up was with respect to specific plots Nos. 1, 2, 3 and 1083 situate in the aforesaid village Bishun Tikar and the order in question passed by the Magistrate relates not only to those plots but to all the mica mines and mica deposits within the village. It is said that there was neither any report of the police as to there being any dispute likely to cause a breach of the peace with respect to the mica mines in the entire village, nor as a matter of fact was there any such dispute.

Upon an information lodged to the police on the 4th of August, the police went to the spot and found that work in the aforesaid plots Nos. 1, 2, 3 and 1083 was going on in the mountains and jungle. On behalf of the first party "there was an interference" and that consequently there was the probability of a riot between the parties.

The Sub-Inspector deputed some constables to keep a watch so that there might be no breach of the peace, and requested the Magistrate to issue notices against both the parties under Sec. 144 of the Code of Criminal Procedure. The Magistrate accordingly by his order of the 29th of August issued notices against both the parties under Sec. 144 fixing the 5th of September for cause being shown as to why the order should not be made absolute.

On the 5th of September the Magistrate on hearing the parties came to the conclusion that the dispute was with regard to a particular area in the village from which both parties alleged that they were taking mica and be directed proceedings under Sec. 145 to be instituted, fixing the 22nd of September for filing written statement.

On that day, a petition was filed on behalf of the first party praying for an amendment of the proceeding by including the entire village as the subject-matter of dispute. The proceeding was by the order of the Magistrate, amended. The amended proceeding related to "the possession of whole village Bishun Tikar (mica mines)."

In the meantime on the 21st of August the police had submitted another report in which the police stated that the danger to a breach of the peace was accentuated and that it could only be prevented by attaching the subject-matter of dispute. In the amended proceeding, the Magistrate referred to the police report as a source of his information upon which the proceeding was founded. The report referred to must be the latter report of the 21st of August.

On the 24th of October both the parties filed their written statements. The second party in its written statement (para. 7) stated that there was never any likelihood of a riot or breach of the peace on behalf of the second party, nor did it want to commit any riot. Upon these facts it is said that there was no likelihood of a breach of the peace with respect to any mica mine in the village, far less with respect to all the mica mines therein.

Consequently it is urged that the proceeding is without jurisdiction, and, even if there was any danger to a breach of the peace, it was with respect to the specific plots referred to above and that the proceeding of the 21st of August and the order of the Magistrate declaring the possession of the first party with respect to the mica mines in the entire village is without jurisdiction.

As regards the first contention, which is directed against the entire order of the Magistrate, it is sufficient to state that the parties did not at any stage of the trial contend that there was no dispute leading to a breach of the peace as set forth in the proceedings of the Magistrate. No evidence was directed upon this point by any of the parties.

Both the police reports were clear upon the point that the danger to the breach of the peace was imminent and in spite of the deputation of the constables no party was desisting from a serving their rights of possession over the subject-matter bf dispute. In the second report the matter came to a head, so much so that the police wanted an immediate action to be taken by attaching the property in order to prevent a breach of the peace. The plea taken in the written statement of the second party (para. 7) referred to above only shows that the second party was not going to commit any riot.

The written statement does not say that there is no danger to a breach of the peace on behalf of the first party. The plea set forth in the written statement of the second party is one of innocence so far as that party is concerned. That does not show that there was no danger to a breach of the peace. The proceeding drawn up under Cl. (1) of Sec. 145 must be considered to be conclusive of the existence of a breach of the peace unless it were shown that the information upon which the proceeding is based does not in fact disclose any danger to a breach of the peace. The proceeding in this case as shown above, was passed upon the police reports which clearly showed that there was a danger to a breach of the peace. The proceeding therefore was not without jurisdiction.

It could, however, be dropped subsequently under Cl. (5) by a party showing to the Magistrate that there was in fact no danger to a breach of the peace. The parties in the present case did not give any evidence disputing the correctness of the statement made in the proceeding with respect to the existence of danger to a breach of the peace. This contention is, therefore, without any substance and must be overruled.

The next contention, which attacks the proceeding so far as it comprises all the mica mines in the village, stands more or lets on the same footing. The police report disclosed the reason of the dispute between the parties. Each of them was claiming the right to work mines in the whole village. No doubt at the particular moment the specific plots of mica mines mentioned above were being worked out.

The Magistrate was well within his jurisdiction to include within the proceeding drawn up under Sec. 145 what he upon the police report and on hearing the parties on the 5th of September 1921 thought was the real subject matter of dispute between the parties which endangered the peace. The written statements filed in the case by the parties clearly shew that the mica mines in the entire village were in dispute: vide paras 2 and 3 of the written statement of the first party and paras. 5, 8 and 9 of that of the second party.

In fact, the whole tenor of the claim set forth in the written statements relates to possession of the mica mines in the entire village. The second party alleged that "they were in possession and occupation of the entire mouza Bishun Tikar and of the surface and sub-soil rights from a long time by virtue of a mukurari lease held from the time of their ancestors, etc."

Again, the second party states that the first party had never any concern with the village nor had they worked any mica mines in the said mouza. Similarly, the first party stated in its written statement that the mica mines and the deposits in mouza Bishun Tikar was being worked by it from a long time. The evidence was also laid by both the parties claiming the exclusive right of possession over the mica mines in the entire village. Therefore it is idle to contend that only the specific plots mentioned above were in dispute between the parties, and not all the mica mines in village Bishun Tikar.

The Magistrate construed the police report as disclosing dispute over the entire village and the view taken by him does not seem to be so perverse as to entitle this Court to hold that the proceeding with respect to the mica mines in the entire mouza was without jurisdiction. The Magistrate is not bound by the letter of the police report or other information. He is to consider as a whole the police report and the information given to him and to satisfy himself as to the real subject matter of dispute between the parties. In this case he was satisfied that the dispute was with respect to mica mines in the entire village.

We have no reason to quarrel with the Magistrate for the construction put by him upon the police report and the pleadings of the parties. He heard the parties on the 5th of September and that also afforded to him the ground upon which he drew up the proceeding with respect to the mica mines in the entire village. The proceeding, therefore, in the present case does not seem to be at all illegal or irregular, or beyond the jurisdiction of the Magistrate.

The next contention of Mr. Asghar is not only subtle but full of difficulty. His contention is that the order in question is too vague and general to come within the scope of Sec. 145 of the Code. He says that the first party claimed their right to work mica mines in the village on the strength of a temporary lease granted by the proprietor of the village, whereas his clients (the second party) claimed to be in possession of the entire village, both surface and sub-soil rights, from a long time so far back as 1858, as mukuraridars of the village. He says that the Criminal Court and particularly the enquiry under Sec. 145, is not proper forum where the intricate question relating to the rights of the parties as to the sub soil in the village can be determined.

In short, his case is that he is a man on the spot admittedly in possession of the surface rights in the village and he is asserting his right to work out the mines. He has a right to prevent the Zemindar of the village from coming in and disturbing his possession of the surface in order to workout the mines below the surface; in other words, he says that the dispute between him and the Zemindar and the lessee of the Zemindar must be determined by a Civil Court, and so long as the rights of the parties are not settled the Magistrate should not force upon him a stranger to the village who holds only a lease of mining rights.

In support of his contention Mr. Asghar has relied upon the case of the Indian Iron and Steel Company v. Bansa Gopal Tewari (1919) 32 C.L.J. 54=59 I.C. 403=22 Cr.L.J. 99 and the case of Bengal Coal Company Limited (1875)23 W.R.Cr. 45. In the latter case, the right claimed was to sink coal pits upon a part of the village named Nimcha on the strength of the lease which gave right to sink coal pits in the entire village. On a construction of the leases set up by the contending parties, Jackson, J., recorded the following finding :

"Therefore the matter in dispute here, being the right of the Opposite Party, the lessee under the second pottah, to sink coal pits upon a part of the village of Nimcha, which, as far as we can see from the papers, is not situated within the limits of the 800 bighas of danga patoet jumee on which the Bengal Coal Company are working, all that the Magistrate had to see was whether the Complainants or the Opposite Party were in possession of the subject of dispute.

"It appears to us that the possession in regard to which the Magistrate''s jurisdiction under Sec. 530 should be exercised must be of a real and tangible character. We think that, when a party claims under a document or agreement the right of doing certain things over a large extent of territory, the performance of acts under such alleged right in one portion of the ground over which the right extends, although it may be good and sufficient for the purpose of keeping alive that right so as to be an answer to the plea of limitation raised in a civil suit, is not of itself a sufficient possession on which the Magistrate''s order under Sec. 530may be based for the purpose of forbidding in a distant locality acts not necessarily in conflict with such possession, though at variance with the right.

"The Magistrate observes that the Coal Company could not be expected for the purpose of maintaining their rights to dig pits over very few acres when they are not presently wanted for mining purposes. Certainly they could nor, because, if they did so, and extended the range of their work, they would make themselves liable for the payment of additional rent under the stipulations of the pottah.

"It seems to us that there was no ground for the contention that the Bengal Coal Company was in actual possession of that portion of the village of Nimcha, whether as to underground rights or otherwise in which the acts complained of took place, so as to entitle the Magistrate to interfere under the provisions of Sec. 530. It appears to me that the pottah in this case is one upon which the Magistrate should not have put what he calls summary interpretation".

Then his Lordship proceeds and holds that the construction put upon the pottah by the Magistrate was erroneous. His Lordship concludes the judgment in the following words : "The whole village was not given to them, but the landlord settled the right to dig for coal with them, subject to all sorts of rights which are stated in the pottah. I have carefully abstained from offering any sort of opinion as to whether the terms of the pottah are such as restrain the landlord from assigning over the right to dig coal to anybody else.

"This, I think, is abundantly clear that, if the landlord, in giving such right to the second party under the pottah lately granted, has derogated from the right of the Bengal Coal Company their remedy is perfectly clear and open for they are at liberty to bring a suit against the landlord and the party deriving title from him, and may, on showing sufficient grounds, have an injunction from the Court restraining the latter from taking coal. The Magistrate, I think, was not the proper forum to which they ought to have gone.

"I think, therefore, that the Magistrate''s order was made without jurisdiction and on a misconception of the facts, and that consequently it ought to be quashed".

This case was largely relied upon by Sir Asutosh Chaudhuri, J, in the case quoted above Indian Iron and Steel Company v. Banso Gopal Tewari (1). It would however, appear that both the contending parties in that case were claiming upon the leases granted to them by the landlord. The construction of those leases was the matter of dispute between the parties and the Court clearly came to the conclusion that the leases granted to the company restricted them to a certain area, and the fact that they dug coal mines in that particular area did not give them constructive possession over the entire village.

That case is not an authority, for the proposition that under no circumstance the right to dig coal mines can come within the purview of Sec. 530 of the old Code of Criminal Procedure (1872) corresponding to Sec. 145 of the present Code. On the other hand if the right was exercised with respect to the particular area to which the lease extended, Jackson, J., in the case of Bejoy Nath Chatterji v. Bengal Coal Company, Limited (1875) 23 W.R.Cr. 45, would probably have held that the Magistrate had Jurisdiction to maintain the possession under Sec. 145 of the Code.

Sir Asutosh Chaudhuri was perfectly right in his observation that it may be difficult to extend possession over other areas covered by mines and minerals from the fact of actual possession over the particular area and that when the question involves a consideration of what is meant by possession in such matters and the difference between actual and constructive possession in the case of mines and minerals, the proper forum is the Civil Court.

His Lordship also makes a distinction between a prospective license and a lease to dig minerals. In that case the actual disputants did not "hold mining leases but mere prospecting licenses." That case also is no authority for the proposition that mines and minerals or the right to big mines and minerals cannot be the subject-matter of an enquiry under Sec. 145 of the Code of Criminal Procedure. This is clear from the following observation of his Lordship.

"Nor does it confer any estate or interest in the minerals before they are actually gotten. A license to dig minerals coupled with a grant to carry them away is a profit a prendre an incorporeal hereditament lying in grant, and if exercised by an actual taking of possession it may be the subject matter of use and occupation and [if exclusive] may be and [even if non-exclusive] probably may be, the subject-matter of an action to recover possession."

Now I may add that if a party under a mining lease is in actual possession of the mines and minerals as profit a prendre they can enforce their possession not only by a civil suit but can claim to be maintained in their possession by an order under Sec. 145 of the Code of Criminal Procedure. Whatever difficulty might have been felt in the construction of the corresponding section in the Cole of 1878 as to whether Sec. 145 can comprise a dispute relating to mines and minerals, it is clear that the present section provides an explanation so as to remove any doubt whatsoever upon the point.

Land or water has been defined in cl. (2) of Sec. 145 to include "buildings, markers, fisheries, crops or other produce of land and the rents or profits of any such property." The explanation was added with a view to remove doubts thereon upon the construction of the former Act as to whether incorporeal rights can in any circumstance come within the purview of Sec. 145.

It used to be said under the old Act that Sec. 145 can deal only with tangible property. Therefore disputes relating to a profit a prendre or other incorporeal rights were not brought under the scope of Sec. 145 with the result that danger to a breach of the peace could not be averted by a summary decision as to the right of possession of land and the profits arising therefrom; whereas disputes with respect to such rights are more usual than the disputes relating to the possession of land or water in the abstract.

Now no doubt is entertained upon the point that mines and minerals and the right to take mines and minerals can well be dealt with by an order under Sec. 145: vide Andrew Yule and Co. v. A H. Skone (1919) 4 P. L. J. 154=49 I.C. 647=20 Cr.L. J. 199, and Sunder Mull v. Jahur Lall (1917) 2 P.L.J. 637=2 P.L.W. 54=41 I. C. 132=18 Cr. L. J. 756. Very recently my learned brother, Bucknill, J., in the case of Maharaj Kumar Jagat Mohan Nath Shah Deo v. Burn and Company Cr. Mis Cas. No. 21 of 1921, held that Sec. 145 can, very well be invoked and applied in the case of prospecting leases in order to find out and ascertain whether any minerals are to be found in a particular area. His Lordship observes: "Now Sec. 145 contemplates, it will be observed, a dispute likely to cause a breach of the peace concerning any land or water or the boundaries thereof and by sub-sec. (2) the expression ''land or water'' was, by what I understand is an amendment of the law at a later date, made to include buildings, markets, fisheries crops, or other produce of land, and the rents and profits derivable from such profits. But behind all this rests the fundamental idea in connection with Sec. 145 of positive physical possession."

Now one may very well imagine that the right of prospecting may be at many periods merely an incorporeal right; that is to say that it does not involve any physical or actual possession of any part of the property over which the right of prospecting is given; as for example supposing that an individual is given the right to prospect for oil over a very large area of country, it could not for one moment be said that his right gave him any possession over that area which was contemplated by Sec. 145 save in so far as it could be said with truth that he was exercising over any part of the area substantial acts of possession.

On the other hand it is equally easy to understand and to contemplate that where in the case of certain minerals, such as coal, prospecting and re-search and investigation have begun, (for example an engine driving a diamond drill) that coal sheds and habitation for the workmen have been erected in certain places, and, as I have myself seen, they have been enclosed with a palisade or fence; then in cases such as that I can well understand that in connection with the area of locality where the prospector is actually engaged in his operations it may well be said that such would be a typical instance of positive possession of land or of possession following the incorporeal right which would be typical of inclusion within the purview of Sec. 145.

Cases have been quoted to me in the course of this hearing in which it has been suggested that possibly in connection with mining rights Sec 145 was not altogether the best section which could be utilised for dealing with disputes in connection with those rights. But I cannot help feeling that, although there is also some contrary opinion to the effect that Sec. 145 can be brought into play, in each case regard must be had as to whether there is any actual question of possession in dispute.

In that case it appears from the order of the Magistrate that the dispute related to the rights of prospecting for coal and other minerals in villages Pindar Kone and Jalla, Thana Balumath, and, the order of the Magistrate was made declaring that the first party in that case was in actual possession in respect of carrying on prospective operations for underground minerals in the aforesaid villages

The question as to whether Sec. 145 is appropriate must be determined in the circumstances of each case. Now, whether in this particular case there was a dispute as to the actual possession of the mica mines and mica deposits within village Bishun Tikar, undoubtedly some of the mica mines were actually being worked, particularly those in Plots Nos. 1, 2, 3 and 1083. The Magistrate held that the first party was in actual possession of the mica mines and had been in such possession for a considerably long time under several temporary leases, the last lease being of 1916.

Upon the evidence of this actual physical possession over the mines in the village the Magistrate passed his decision in favour of the first party and declared their possession. The mica mines, which were dealt with in this case, are said to be the only mica mines which are at present being worked, and the order of the Magistrate relates evidently to those mica mines. The possession of first party over the mica mines at present in existence in the village, and which are being worked might lead to an inference in their favour of their right to dig mica mines elsewhere in the village; but those are not the mica mines which are at present before us and we do not know what claims, not only the contending parties but others, might make with respect to them.

We cannot anticipate any dispute with regard to things not in existence. Therefore to construe the order of the Magistrate with regard to the existing facts it must be held that all the mica mines at present worked in the village are in the possession of the first party and the declaration under Sec. 145 of the Code of Criminal Procedure in their favour is with respect to the actual physical possession of those mines. I therefore think that there is no question of any misapprehension in the present case and the order made by the Magistrate is proper and unassailable in revision.

We affirm the order and dismiss the application.