Ramadhikari Singh and Others vs Emperor

Rowland, J.—The petitioners in Criminal Revision No. 442 of 1936 apply against their conviction and sentences of Rs. 50 each u/s 76(b), Bengal Embankment Act (Bengal Act 2 of 1882). Criminal Reference No. 50 of 1936 is made by the Additional Sessions Judge of Darbhanga recommending revision of a consequential order u/s 79 of the same Act made by the same Magistrate in connexion with the above conviction. Now so far as the convictions of the petitioners are concerned, the facts are concluded by the findings of the trial Court against which no appeal lay on the facts. The findings were that people of village Mahthi led by the petitioners who themselves were present at and supervised the work, were making an embankment west of the river Gandak with a view to preventing that river from overflowing into the fields of village Mahthi.

The defence of the petitioners, apart from their denial that they took part in this work, was that no new embankment was being made but an old embankment was being repaired. The finding is that there had been an old embankment; at some places traces of it remained, at others there was no trace and the embankment which was being made must be considered new. A point of law is raised, it being contended that the prosecution had not proved that Section 76(b) had been lawfully brought into force in the area. I find no substance in this. The section is to be brought into force by publishing a notification u/s 6 in the Provincial Gazette. Section 6 enacts that the provisions of Clause (b), Section 76, shall take effect one month after the publication of such notification. It is not disputed that there was a Gazette notification made in July 1911. Section 6 further directs that

As soon as possible after the said publication, the Collector shall cause a translation of the notification in the vernacular to be published in the manner prescribed in Section 80.

Section 80 gives the manner of local publication affixing a copy in the Collectorate, Subdivisional and Munsif''s offices, at every police station and by affixing copies in hats, bazars, towns, villages, etc., and by beat of drum at certain public places. The Collector has forwarded with his explanation on this ground the Gazette notification u/s 6 and a letter from the Secretary to Government with instructions as to publication and with an endorsement comprising the Collector''s orders for giving effect to those instructions in the several localities. Apart from the difficulty of getting direct proof of local publication after this interval of time exceeding 25 years, the Crown can I think, be permitted to rely on the presumption u/s 114, Clauses (e) and (f), Evidence Act, namely that judicial and official acts have been regularly performed and that the common course of business has been followed in particular cases; and even if publication could be neither proved nor presumed, it has been held in Damodar Narayan Choudhury and Others Vs. Emperor, that the publication u/s 80 is directory and not mandatory. This point failing, Mr. Manohar Lal throws his clients on the mercy of the Court, and asks for some reduction of sentence. They were liable each of them) to pay a fine of Rs. 500, and I do not consider that the fines of Rs. 50 each which have been imposed are excessive. Criminal Revision No. 442 is accordingly dismissed.

Turning now to the reference, the learned Additional Sessions Judge thinks that the order is unwarranted by the evidence. As it stands, it appears to be a direction to demolish the entire embankment, whereas on the Magistrate''s own findings parts of the embankment were already existing before the work of adding to it began. The learned Sessions Judge suggests that the order be set aside. But that would clearly not be a correct order, as it would allow the retention of a bandh which makes serious change in the status quo with regard to the levels and to the flow of water. As pointed out in Kameshwar Singh Bahadur of Darbhanga Vs. Emperor, .

The system of embankments in North Bihar is very complex, and it is indeed as the Commissioner pointed out ''extremely hazardous to interfere with them in any way without the advice of a competent engineer and full inquiry.''

The Bengal Embankment Act is largely composed of provisions designed for the maintenance of the status quo and to prevent interference there with except by competent persons or under competent advice and sanction. Therefore simply to set aside the learned Magistrate''s order and allow the embankment and additions to embankment to remain would cause the very evil which the learned Additional Sessions Judge seeks to avoid. The proper order will be, in my opinion, to modify that passed by the Magistrate u/s 79 by directing that the petitioners are to demolish so much of the embankment as is new embankment and to remove so much of the new earth as is addition to existing embankment, thus restoring the locality as nearly as possible to its status quo ante. If such an embankment as the petitioners and others wish to erect can be erected without damage to neighbouring village, their proper course is not to take the law into their own hands but to move the Collector under the Embankment Act to give them permission after holding an inquiry and giving such directions as may be necessary to secure the rights of their neighbours. The order u/s 79 is modified accordingly.