Taraknath Mookhopadhya vs The Collector of Hooghly, on behalf of Government and Others

Macpherson, J.—This is an appeal from a decision of the Judge of Hooghly in a suit instituted by the appellant against the three defendants, Iswar Chandra Mitter, who is or was Deputy Magistrate of Jehanabad; Rajaram Ghose, a Sub-Inspector of Police in that Sub-Division; and Kaliprasanna Chatterjee, an Overseer of Ferry Fund Roads. The suit was brought against them in their private capacity, in order to recover damages for the loss sustained by the cutting of a band of the plaintiff''s, and to obtain a declaration that the plaintiff has a right by user or prescription to erect and maintain a band such as the one which was out, for the purpose of providing water for the irrigation of his "boro" crops. The plaintiff''s case is that he, having a right to erect a band in the Mondeshori khal or river, where it passes through his lands, in order to create a supply of water for the irrigation of the boro crops, had in the end of 1866, or beginning of 1867, erected his band as usual; that the Deputy Magistrate improperly and illegally ordered the band to be cut away, and the other defendants carried out this order; and that in consequence all the water required for irrigation escaped, and the whole boro crop was lost.

The substantial defence of the Deputy Magistrate is that, in ordering the band to be cut, he was acting judicially and bona fide, and that he is protected by Act XVIII of 1850. In his written statement be states that he ordered the band to be cut, because the water penned back by it injured and submerged an embankment or mud bridge erected across the bed of the Mondeshori for the convenience of those using the old Benares road; but he does not deny the existence of the right by prescription or user claimed by the plaintiff.

It is unnecessary to enter into the details of the defence of the other two original defendants, who merely acted upon the orders of the Deputy Magistrate.

Although the suit was against the defendants in their private capacity, and no decree made in it would have been binding upon the Government, the Collector of Hooghly, acting on behalf of Government, presented a petition praying to be made a defendant. In this petition it is urged that the Deputy Magistrate passed orders in connection with the cutting of the band, either in his judicial or in his executive capacity; and in either case, the Government ought to appear in the suit and make "statements." Also that "the plaintiff''s suit being injurious to the Government road, it ought to be decided in the presence of Government." The plaintiff opposed the application, hut it was, unfortunately for the Government, granted.

Thereupon the Government put in a written statement, denying on various grounds the plaintiff''s right to erect the band, and generally supporting the case made by the Deputy Magistrate, giving further details as to what happened. But the written statement sets up no substantive right on the part of Government to erect an embankment across the bed of the river; no right other than one based on the general convenience of the public.

The case was tried by the second Subordinate Judge of Hooghly, who held that the plaintiff had a right by prescription or user to erect the band. He considered it proved that the band had been erected by the plaintiff from time immemorial, but that the three original defendants were not liable for damages, as they acted in good faith. He accordingly declared that the plaintiff had a prescriptive right to erect the band, dismissed the claim for damages, and gave no costs

On appeal the Zillah Judge held that the plaintiff''s prescriptive right was proved, and that the Deputy Magistrate had acted bona fide and with due care (though wrongly), and therefore was not liable in damages. He modified the declaration as to the nature of the band which the plaintiff is entitled to erect, and ordered the plaintiff to pay the costs of all the defendants.

In special appeal, the plaintiff contends that, on the facts found by the Judge, he was wrong in law in holding that the Deputy Magistrate is protected by the provisions of Act XVIII of 1850. He also appeals on the question of costs, and as to the mode in which the Judge has declared his right to erect the band.

Act XVIII of 1850 says:--"No Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially, shall be liable to be sued in any Civil Court for any act done, or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of: and no officer of any Court, or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector, or other person acting judicially, shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which be would be bound to execute, if within the jurisdiction of the person issuing the same." Although at first sight this Act may seem to include almost all mistakes that a Magistrate can make, there is no question now that it does not protect a Magistrate who has not acted with due care and attention. The mere absence of mala fides is no defence. As the Penal Code (section 52) declares that nothing is said to be done or believed in good faith, which is done or believed without due care and attention," so it has been decided, conclusively I may say so far as we are concerned, that a Magistrate cannot be said to have in good faith believed himself to hare jurisdiction to do, or order the act complained of, unless he, in arriving at that belief, acted reasonably, circumspectly, and carefully--Lang v. Gubbins reported in a footnote to the case of in re Foy 1 Tayl. & Bell 228, Vithoba Malhari v. Corfield 3 B.H.C.R. App. 1 (19), and Vinayak Divakar v. Bai Itcha 3 B.H.C.R. A.C. 36. A Magistrate would doubtless not be personally liable for an act done by him under a misconstruction or misinterpretation of the law, if his proceedings were in other respects regular, and if the misconstruction or misinterpretation were one which might have been put upon the law by a reasonable man acting with ordinary care and attention. But a Magistrate is not protected by saying he misconstrued the law, unless his proceedings have been in other respects regular, and the view of the law taken by him is such as a reasonable and careful man might take.

In the present case, the Judge has found as follows:---"Under these circumstances, it appears to me that the Deputy Magistrate was acting in a matter in which he had jurisdiction to pass an order, which, if not "appealed against, would be definitive, and therefore be acted judicially. He does not quote the section of the law under which he acted, but it is urged on his behalf that the order was passed under Chapter XX of the Code of Criminal Procedure, I have no doubt that his order "in the matter was irregular and illegal; he acted upon no legal evidence, for the Police report was no evidence, and he did not examine the Overseer on oath; and when the plaintiff showed cause against the order, and pleaded a right by usage, his petition was just as binding upon the Deputy Magistrate as the Overseer''s report. But although the proceedings were illegal, there is nothing to show that the Deputy Magistrate "did not act in good faith; indeed, mala fides has not bean attributed to him in the appeal-petition. It seems to me that he did not consider it necessary under Chapter XX to examine evidence, and that he considered the Police enquiry passed upon the petition of the 11th February sufficient basis for his order. He says himself in his deposition that he did not consider other evidence requisite, and therefore he seems to have erred from ignorance and a misapprehension of the mode of "procedure required. It does not appear that his proceedings were "characterized by a want of care, although the order was illegal; and "he attempted in having his order carried out, to cause as little damage "to the plaintiff as possible."

In order to see whether the Judge was legally warranted in the conclusions he arrived at, it is necessary to enquire accurately into the proceedings which resulted in the destruction of the plaintiff''s band.

On the 15th of January 1867, the Road-Overseer reported that the water penned back by the plaintiff''s band was rising and injuring the Government embankment (at the place where the old Benares road crosses the khal); and that, unless the band was cut, the cost of erecting and maintaining the Government bridge (or embankment) would be enhanced. On the 17th, the Deputy Magistrate ordered the Police to give notice to the parties interested to out down the band, and let the water run off, so as not to injure the Government embankment. On the 6th of February, the Police reported that this notice had been given by them. On the 11th of February, the plaintiff and his ryots presented separate petitions to the Deputy Magistrate, claiming a right by user or custom to erect the band for the purposes of irrigation, and praying for an enquiry. Thereupon the Deputy Magistrate ordered the Police to enquire whether there was any prescriptive right to erect the band. At the same time he passed an order, directing the Police to find out the names of, and proceed against, those who had neglected to obey his order to cut the band, as their neglect was an offence. I may here remark (though it does not affect the issue in this case), that those parties were in fact; proceeded against, and were on the 27th of March fined by the Deputy Magistrate. On the 20th of February, the Road-Overseer made another report, complaining of the injury to the Government embankment. On the 23rd of February, the Deputy Magistrate ordered an injunction (apparently in the nature of an injunction contemplated by section 314 of the Criminal Procedure Code), to issue through the Police to those who had erected the band. On the 26th of February, the Deputy Magistrate issued another order to the Police to see that the band was cut. On the 5th of March, the Police reported that they had served this last order on the parties. On the 9th of March, a Sub-Inspector of Police reported to the Deputy Magistrate that he had enquired into the matter, and examined witnesses, and found that the plaintiff had no right to erect the band; but that one Chandi Charan, called the Goldigri talookdar," had a right to a band lower down the khal. On the 11th March, this Chandi Charan presented a petition, praying that the plaintiff''s band might be removed, so as to allow the water to flow down to his band; and, thereupon, the Deputy Magistrate ordered that, if the band was not there by prescription or custom, it was to be cut down at once; but if it was said to be there by right of prescription, it must be cut down, or cause must be shown to the contrary within seven days. On the 19th of March, the Overseer reported that the Government embankment was still submerged and suffering injury, and that the order to cut down the band had not been obeyed. On the 20th of March, the plaintiff presented a further petition, complaining and denying the truth of the report of the Sub-Inspector of Police as to the plaintiff''s right to the band, and praying that the Deputy Magistrate would go and look at the band and enquire, Thereupon several orders were passed, one of which was that the Overseer and Police were to cut the band at once, at the cost of those to whom it belonged. On the 23rd of March, the band was cut in obedience to this order.

The question is, whether on these proceedings a Judge is warranted in finding as a fact that the Deputy Magistrate acted reasonably, circumspectly, and carefully; and that when he caused the band to be cut, he believed he was acting legally and within his jurisdiction in cutting it; such belief having been arrived at with due care and attention.

It appears to me that there was the utmost irregularity, negligence, and inaccuracy throughout the proceedings of the Deputy Magistrate, and that it is legally impossible to hold that he acted with due care and attention.

The Zillah Judge says, it was urged before him that the Deputy Magistrate proceeded under Chapter XX of the Code of Criminal Procedure, and no doubt that chapter contains the law under which alone the Deputy Magistrate could have had any power to meddle with the plaintiff''s band, I shall proceed to state what the provisions of that chapter, so far as they bear in any way upon this case, are.

Section 308 of the Criminal Procedure Code enacts that, whenever a Magistrate considers that any unlawful obstruction or nuisance should be removed from any thoroughfare or public place, he may issue an order to the persons causing such obstruction or nuisance, calling on such persons within a time to be fixed in the order to remove such obstruction or nuisance, or to appear before such Magistrate within the time mentioned in the order, and show cause why such order should not be enforced.

By section 311, if the person to whom such an order, as is mentioned in section 308, is issued, shall not obey such order, or show cause against the same, he shall be liable to a penalty, and the Magistrate may proceed to carry the order into execution at the expense of such person, &c.

By section 313, if the person to whom the order of the Magistrate is "issued, shall appear and show cause against the same, and shall satisfy the Magistrate that the order is not reasonable or proper, no further proceedings shall be taken in the case."

Under these sections, the course which it was the duty of the Deputy Magistrate to take seems clear enough. If he considered that the band was an unlawful obstruction or nuisance, which should be removed from a thoroughfare or public place, he should have issued an order, calling upon the person who caused the obstruction, either to remove it, or show cause why it should not be removed, within such reasonable time after the service of the notice as the Deputy Magistrate thought proper. If the person to whom the order was issued appeared to show cause, the Deputy Magistrate should have heard what cause he had to show, and should have enquired what was the ground upon which he opposed the order, fixing, if necessary, a date on which the case should be heard, and the evidence (if any) should be gone into. He was bound, in fact, to proceed in a judicial manner, giving the party, with whose property he proposed to deal, a full and fair opportunity of protecting himself.

The Deputy Magistrate''s first order of the 17th of January was wholly unwarrantable, being an order absolute to cut the band, based on no legal grounds whatever, and not giving the owner of the band an opportunity of showing cause against the order.

On the 11th February, the Deputy Magistrate ordered the Police to enquire whether the plaintiff had a prescriptive right to erect the band. But this really does not mend his position much, for there is no law which authorizes a Deputy Magistrate to delegate his judicial functions to Police officers. Not only is it illegal in the Deputy Magistrate to delegate his power to the Police, but there is absolutely nothing whatever in the Criminal Procedure Code, or in any other law, which can possibly be construed into an authority to employ the Police for any such purpose. No Magistrate, considering the matter at all, could (according to the ordinary processes of reasoning) have arrived at the conclusion that, in telling the Police to enquire, be was himself enquiring, or was acting up to the provisions of Chapter XX, which provides that a man shall have an opportunity of showing cause before the Magistrate, before the order is carried into effect. The Police report as to the matter of right being wholly valueless, we thus have it that, though on the 11th of February, the plaintiff filed a petition, stating his opposition to the order to cut the band, and the grounds of his opposition, and praying for further enquiry, yet no enquiry had been made on the 11th March, when the Deputy Magistrate again ordered that the band should be cut, unless cause was shown within seven days. On the 20th March, the plaintiff did again appear to show cause, putting in his petition in which he again asserted his prescriptive title, and prayed for further enquiry. But though no legal enquiry whatever had up to that date been made, and although the Deputy Magistrate had not before him one scrap of evidence on which to base his proceeding, ho, without saying expressly that he declined to enquire, or giving any reason for not enquiring, at once ordered the band to be cut.

It seems to me that throughout these proceedings, the Deputy Magistrate avoided looking into any question of right in the matter, and chose to act, with utter disregard of the law, in such manner as to him seemed most for the public convenience. In so acting, he did not proceed reasonably or with due care and attention. Ho did not act in good faith in the legal sense of the term, and he is not protected by Act XVIII of 1850.

The plaintiff has rested his case to some extent on the fact that the Magistrate did not summon a Jury, as provided by Chapter XX. But the Magistrate is not to blame for this, as he never was asked to summon a Jury. That the plaintiff is wrong in blaming the Magistrate for not summoning a Jury, is, however, no reason why he should be now tied down to that one objection, when contending that the whole proceedings were grossly irregular, and are not protected by Act XVIII of 1850.

A suggestion thrown out by the Court, after hearing the case argued for the appellant, that the parties should consider whether they could not enter into some compromise, having led to no results, Mr. Bell, the Officiating Legal Remembrancer and Government Advocate, appeared on behalf of Government, and proceeded to take various objections to the judgment of the Court below. He contended that the Court had no jurisdiction to entertain such a suit at all, as the band was cut by the Deputy Magistrate, acting u/s 62 of the Criminal Procedure Code; that this was practically a suit to reverse the order of the Deputy Magistrate, and it had been decided by a Full Bench (on the 3rd of September 1869) in the case of Ujalamayi Dasi v. Chandra Kumar Neogi 4 B.L.R.F.B. 24, that such a suit would not He; that the plaintiff could have no right as against Government by mere user or prescription to erect this band, unless a sixty-years'' user was proved; and that it was injurious to the public that the Government embankment should be submerged by the water penned back by the plaintiff, and therefore the Deputy Magistrate had a right to cut the band.

That any one of these arguments should have been put forward on behalf of the Government, appears to me to be very surprising. The Deputy Magistrate''s own case is, as the Judge tells us, that he was proceeding, not u/s 62, but under Chapter XX of the Criminal Procedure Code. Further, the Collector of Hooghly himself, in the written statement which he filed on behalf of Government, said the same thing as regards the actual cutting of the band (the only matter which is really in issue in this suit). In this written statement is the following passage:-- The orders issued on the report of the Overseer were in effect orders u/s 62 of the Code of Criminal Procedure. The order of the 11th March on the petition of the Goldigri talookdar was in effect u/s 308." No question of jurisdiction was raised in the lower Court, and it is not a little remarkable that it should have been deemed proper to suggest such a defence for the first time in special appeal, especially on behalf of a defendant, who, like the Government, had forced himself into the suit by insisting upon being made a defendant, in spite of the opposition of the plaintiff. The Full Bench decision relied on has no bearing upon the question involved in this suit. The Full Bench decided that a civil suit will not lie to set aside an order of a Magistrate passed under Chapter XX. The present suit was not brought either directly or indirectly for the purpose of setting aside the order of the Deputy Magistrate, nor can that order be now set aside. What the plaintiff sought was damages from the Deputy Magistrate, for an act illegally done by him not "in good faith," and a declaration of his right to maintain his band in future seasons. There is nothing in the Full Bench decision which decides or indicates that such a suit will not lie.

If the Government had any right to erect a band or bridge, such as the one, the submersion of which led to the Deputy Magistrate cutting the plaintiff''s band, that right should have been pleaded and proved. But no such right was established, nor is it even said in the written statement filed on behalf of Government that any such right exists.

It is indeed pleaded, and the Legal Remembrancer actually repeated the argument at the bar, that the Government had a right to cut the band, because it was for the convenience of the public. But such an argument is simply idle, in the absence of proof that the public or the Government had a legal right to the convenience desired. A Magistrate''s ideas of what is for the public convenience, in no decree justify him in appropriating of destroying the property of other persons, except in such manner as the law provides. If the Government has a right to make a road through my house and garden, of course the right may be enforced. But the mere fact that the Government considers that it would be a very great convenience to the public that there should be a road running where my house now stands, gives the Government no right whatever summarily to appropriate my garden, and pull my house down about my ears. The Government and the officers of Government are just as much bound to proceed in such matters according to law, as are private individuals; and the Government and its officers are just as much liable in damages for illegally appropriating or destroying property, for the purpose of adding to the convenience of the public, as is a private individual who appropriates or destroys property for his own convenience. When the Legislature shall have provided that Magistrates may in such cases as that before us, deal with the property of others according to their own notions of what is convenient and desirable, without requiring any evidence to support those notions, and without giving those, whose property is to be dealt with, an opportunity of protecting themselves, and of showing cause against the course which it is proposed to adopt, Magistrates will then be justified in acting at the Deputy Magistrate acted in the present instance. In the meantime, however, the Legislature has not so provided, but on the contrary has expressly enacted that, in cases falling within the scope of section 308 of the Criminal Procedure Code, Magistrates shall proceed in a certain prescribed manner, affording the person whose property in to be dealt with full opportunity of protecting himself.

Neither section 62, nor Chapter XX of the Criminal Procedure Code, authorizes a Magistrate to dispose of the property of others at his mere will and pleasure, or without his having distinct and legal grounds for the course he takes; and this has been repeatedly laid down by this Court. In the case of Bistoo Chunder Chuckerbutty 10 W.R. Cr. R. 27, it was decided that, in proceeding under s. 308, a Magistrate must call on a party, on whom he issues an order to remove a nuisance, &c., to show cause, and must hear him, even if he comes in after the day named in the notice, so long as he comes in before the Magistrate has again taken up the case, and made his order absolute. In the cases of Harimohan Malo and The Quern v. Joykisto Mookerjee 1 B.L.R.A. Cr. 20, it was decided that, in any case which apparently falls within the language of section 62, and also of section 308, the Magistrate is bound to proceed u/s 308, and must give the party, whose property is to be dealt with, an opportunity to show cause. And in the case of The Queen v. Bhyroo Dyal Sing 3 B.L.R.A. Cr. 4, it was decided that there is nothing in section 62 to justify a Magistrate in making an order for the removal of a hand or other obstruction on the mere report of the Police; and that before making any such order, the Magistrate is bound to take evidence from the defendants, and, if necessary, from both sides.

As to the plaintiff having no right to maintain this band as against Government, unless he proves a 60-year''s user, no such question can by any possibility arise, when it is not shown that the Government ever at any time had any right to erect an embankment or mud-bridge, such as the one which was submerged. It is not a case in which the Government having been in the habit for years of erecting an embankment, the plaintiff came and erected his band, and thereby injured the embankment. It is a case in which it is found as a fact that the plaintiff has exercised the right of erecting his band '''' from time immemorial," according to the Subordinate Judge; and for so great a number of years as to create a prescriptive right," according to the Zillah Judge, while it is not found that the Government ever before exercised any such right as that claimed, it was stated by Mr. Money in arguing the case, and the statement was not contradicted by the pleaders for the respondents, that, until the Government recently erected the mud-bridge, passengers by the Benares road had to cross the river in a boat, when the water was deep, and I observe that the Judge speaks of the place where the mud-bridge was erected as the ferry."

On the whole I think that there was clearly such a flagrant violation of the law by the Deputy Magistrate in several particulars, as raises a legal presumption that he did not take such reasonable care, and put such reasonable construction upon the law as might be fairly expected from a Deputy Magistrate. The Judge says that he erred from ignorance and a misapprehension of the mode of procedure; that he acted judicially; and that it does not appear that his proceedings were characterized by a want of care. In my opinion, when a Magistrate violates the plain language of the law, and the very first principles of judicial inquiry, his proceedings presumably are characterized by a want of care; and I think that, in the absence of any evidence to rebut that presumption, the Judge of the Court below was wrong in law in holding otherwise.

I think that there is nothing in the appellant''s objection to the form in which the Judge has declared the plaintiff''s right to erect his band. The Judge was quite right to define as accurately as be could the nature of the band, the right to which he was declaring. And I do not think that we should interfere with the Judge''s order as to the costs of the original defendants, other than the Deputy Magistrate, as it is clear that the Deputy Magistrate alone is in fact the cause of, and responsible for, any damage done by carrying out his order.

The case must be remanded, in order that the Judge may inquire (and if necessary take evidence) as to what damages (if any) have been sustained by the plaintiff, by reason of the carrying out of the order of the Deputy Magistrate. The first point to be ascertained is, to what extent the band. was in fact cut by order of the Deputy Magistrate; then the Court must decide to what extent the destruction of the whole band was the necessary or natural consequence of the band being cut as it was; finally the actual loss (if any) sustained by the loss of the water must be ascertained. The Deputy Magistrate is not responsible for any loss, save that which was the necessary or natural and proximate result of the execution of the order which he passed,

I think the plaintiff (appellant) is entitled to the costs of this appeal and to his costs as against the Deputy Magistrate and the Government in both the lower Courts. Jackson, J.

I entirely concur in this judgment.