Millar vs Rajendra Nath Chowdhry

This is a rule calling upon the District Magistrate and Opposite Party to show cause why the order complained of, which is an order under sec. 147, Cr. P. Code, should not be set aside upon three ground'', viz., first, "that the Magistrate did not find or record any order to the effect that he was satisfied that a dispute likely to cause a breach of the peace existed concerning the alleged road and its obstruction prior to issuing process, and that under these circumstances the subsequent proceedings were bad in law." Second, "that the proceedings were taken against wrong parties, the Petitioner being admittedly only manager of the Singarun Coal Syndicate;" and, Third, "that the learned Magistrate having found that the road had been obstructed by wire fencing prior, to the commencement of the proceedings, and having by his order dated the 15th November 1897 directed the obstruction to remain in statu quo was wrong in law in ordering the removal of the obstruction by his said final order of the 15th March of 1898.

With reference to the first ground we are of opinion that though sec. 147 requires that a Magistrate must be satisfied upon materials before him that a dispute likely to cause a breach of the peace exists concerning the right to do or prevent the doing of anything in or upon any tangible immovable property situate within the local limits of is jurisdiction, before he can institute proceedings under that section, it does not require as sec. 145 does, that he must formally record a proceeding stating the grounds of his being satisfied as to the existence of a likelihood of a breach of the peace. Nor is the case of Bathoo Lal v. Domi Lal I. L. R. 20 Cal. 727 cited for the Petitioner any authority for the proposition that a Magistrate must under sec. 147 record a proceeding stating that he is satisfied as to the existence of a dispute likely to cause a breach of the peace. The mere absence of a formally recorded order then expressing his satisfaction on the point does not render his proceedings under sec. 147 invalid.

In the present case it is clear from the judgment and from the record that the Magistrate had sufficient materials before him to be satisfied as to the existence of a dispute likely to cause a breach of the peace.

The proceedings were instituted upon a complaint by the Opposite Party; and there were also letters addressed to the Magistrate by the Petitioner before us complaining that there was a likelihood of a breach of the peace.

That being so, we think that the first ground is not sustainable. But we are of opinion that the Petitioner ought to succeed on the second ground.

The inquiry that has been held in this case has been held in the presence of the Petitioner who is merely the manager of the Singarun Coal Syndicate; and it is neither shown nor alleged that he has any interest in the land upon which the disputed right of way is claimed. The learned Advocate-General contends in showing cause against the rules, that it is not necessary that the proprietor of I he tangible immovable property, in or upon which the right to do or to prevent the doing of anything is in dispute, should be made a party, that it is enough if the party disputing the right that is claimed, is made a party to the proceedings.

We are unable to accept this contention as correct. The section requires in the first place that the Magistrate should find if the right claimed exists; and the right claimed is certainly claimed not against the servants of the proprietors but against the proprietors themselves. An inquiry into the existence of such a right can, therefore, be properly held only in the presence of the persons claiming a proprietary right in the tangible immovable property in question.

Then the section provides that the Magistrate, if satisfied that such right exists, is to make an order permitting the thing claimed to be done or directing that the thing to which objection is taken shall not be done as the case may be, until the person objecting to such thing being done, or claiming that such thing may be done, obtains the decision of a competent Civil Court adjudging him to be entitled to prevent the doing of, or to do, such thing, as the case may be. The "person" spoken of here must evidently be the person who is claiming a proprietary right in the tangible immovable property in question. The view we take is amply supported by the case of Bathoo Lal v. Domi Lal I. L. R. 20 Cal. 727 above referred to, and the case of Dukhi Mullah v. Holway I. L. R. 23 Cut. 54, in which the case first quoted was considered, does not militate against that view. Upon reason as well as upon authority we think the second contention urged on behalf of the Petitioner ought to prevail, and the rule ought to be made absolute. That being so, it becomes unnecessary for us to consider the third ground. The order made in this case under sec. 147, Cr. P. C, is accordingly set aside.