Rangi Sah vs B.N.W. Railway Co.

Macpherson, J.—This is an application to revise an order made by the Sub-Divisional Officer of Chapra under the provisions of S. 133 of the Code of Criminal Procedure. The proceedings appear to have their origin in a letter from the Assistant Engineer of the Bengal North Western Railway, dated the 16th August, 1922, to the Land Acquisition Deputy Collector, in which it was stated that the present petitioner, Rangi Sah, had encroached on railway land by building a tiled-roof verandah at the west end of the Sonepur Station yard. The Land Acquisition Officer issued a notice to Rangi Sah, who denied that he had encroached upon railway land. The proceedings were sent from the Land Acquisition Deputy Collector to the Sub-divisional Officer with the suggestion that action should be taken under S. 133. The Sub-divisional Officer issued-notice under that Section on the 29th October and again on the 18th December and finally after a report by a kanungo, on the 21st February 1923. The notice on the last mentioned date set out that the present petitioner having built a verandah (osara) and house encroaching 90'' x 5'' on railway land must either remove the encroachment by the 28th February or show cause on that date.

The petitioner, as he had done on three previous occasions denied the encroachment stating that the land was his own and shown in his name in the survey records and in particular stated that the well which was close by was an old well belonging to him. He claimed that evidence should be taken. The Sub-divisional Magistrate then took evidence and in his order found as follows:-

On the whole I am satisfied that there has been an encroachment the width of which is 5'' from the present fencing and the length of which is about 90'' from the railway fencing up to the District Board road.

He accordingly directed the opposite-party to remove the encroachment within a week of receipt of notice.

In the first place it is not clear from the proceedings that the case properly falls under S. 133 at all. The obstruction to which S. 133 is applicable is

An unlawful obstruction............in any way which is or may be lawfully used by the public or in any public place.

There is no warrant for the view that railway land is necessarily a public place especially railway land which, as in this instance, is outside the railway fencing at a railway station. There is indeed a finding of fact that the petitioner has encroached on the railway land left outside the railway fencing bat there is no finding that the land encroached upon is in a way or that if it is in a way, it is on one which is or may be lawfully used by the public. The observation which the Magistrate makes when discussing the question why the land is outside the fencing.

It is said that it appars to have been done for the sake of the public to use the well.

cannot be considered to be a finding that there is a way over the land encroached upon.

In the next place, even if the section be applicable, the procedure of the learned Magistrate was not in accordance with the rule firmly engrafted by the Courts upon the conduct of an enquiry under S. 137, in a case where the public nature of the place from which the unlawful obstruction is to be removed, is disputed, as it is by the petitioner. It is true that this procedure does not appear to be warranted by the Section, but even where judicial opinion on the point has been adverse, it has been recognized that it is too late to go back on the long line of previous decisions following Lakheenarain v. Ram Kumar [1888] 15 Cal. 564, and it has been accepted in this Court in Imrat Ali v Amjad Ali [1916] 2 P.L.J. 67: 3 P.L.W. 404: 18 Cr. L.J. 452: 39 I.C. 292 and other cases. In taking evidence under S. 137, in a case where the public nature of the way is disputed, it is incumbent on the Magistrate, even where be has found, as in the present instance, that the claim of title to the land in question on the part of the person showing cause is not justified, to determine further whether the claim is nevertheless a bona fide claim, and if he finds in the affirmative, to stop proceedings and give such person time to establish his claim in the Civil Court. The Sub-divisional Magistrate failed to find that the petitioner''s claim, even though not justified, was not bona fide (it appears to obtain support from the recent record of right), and on this ground also his proceedings cannot be sustained.

In view of the manner in which notices under S. 133 have been drawn up and failure of the Magistrate to follow the procedure sanctioned by decisions of the Courts, the proper order in this case is to set aside the order of the Magistrate leaving it open to him to take fresh proceedings according to law if so advised. He has seen the place and should be in a position to say whether the encroachment is an obstruction on a way and whether the way, if there be a way, is or may be lawfully used by the public. If he takes action he should only issue notice after clearly making up his mind as to the form the proceedings are to take, so that on the fifth notice to the petitioner, a final order according to law may be passed. If it is a case of mere encroachment on railway land, the railway company should be referred to the Civil Court.

The application is allowed and the order of the Sub-divisional Magistrate, dated the 10th March, 1923, is set aside.