Ramkishun and Others vs Mulik Qamr-Ud-Din

Wort, J.—In this case the petitioners seek revision of an order passed by the learned District Magistrate of Gaya on the 29th September, 1927, in which that Magistrate set aside an order of the Sub-Divisional Officer of Jehanabad made on the 17th August, 1927.

The grounds for this application appear to be that the learned District Magistrate, Contrary to Section 144 of the Code of Criminal Procedure, has substituted an order of his own for the order made by the Sub-Divisional Officer under that section.

It would appear that on the 7th July, 1927, the opposite party applied to the Sub-Divisional Officer stating that the petitioners were endeavouring to dispossess them of some 21 plots of land in Mama Baizidpur, and, in the ordinary course of events, the Sub-Inspector of Police submitted his report in favour of the opposite party. The petitioners thereupon were asked to show cause u/s 144 and as a result of these proceedings the Sub Divisional Officer made an order in favour of the petitioners. As I have stated the learned District Magistrate of Gaya on the 29th September, 1927, on the application of the opposite party, set that order aside.

There are two main arguments advanced in this case. The first was that the effect of the decision of the District Magistrate is that he has substituted an order of his own for that of the Sub-Divisional Officer which is contrary to the decision in Ganpat Singh v. Emperor 47 Ind. Cas. 76 : 3 P.L.J. 287 : 4 P.L.W. 357 : 19 C.L.J. 880.

Now it has been decided by that case, and it is clear law, that the District Magistrate, under Sub-section (4) of Section 144, has no power to substitute an order of his own for that made by the Sub-Divisional Officer under that section, it remains to be seen whether in fact this order of the District Magistrate has that result. The learned District Magistrate at the end of his order says: "In view of all the circumstances of the case, the shape of the lands and the admission of the Chamars, I am inclined to think that the masters of the 1st party are in present possession of the lands in dispute, I, therefore; rescind the order passed by the learned Sub-Divisional Magistrate."

Now in my judgment quite clearly that is not an attempt to substitute an order of his own for that of the Sub-Divisional Officer but is merely rescinding an order of the Sub-Divisional Officer under Sub-section (4) of Section 144, which quite clearly he had power to do. It may be that the petitioners in the case are apprehensive that the reasons stated in the judgment of the learned District Magistrate will be taken as having the effect of an order, but in my judgment that fear is not well founded.

It is further argued in this case that, having regard to the events which have happened, the proper proceeding of the Sub Divisional Officer was not u/s 144 but u/s 145. That may well be, but this Court cannot concern itself in this case with that; it has no power to order the Sub-Divisional Officer to take proceedings u/s 145, and, therefore, the argument on that point seems to me, in my opinion, to be irrelevant. There appears to be no ground why the order of the District Magistrate should beset aside, and, therefore, the application in this case must be dismissed.