MOHD AYUB Vs. STATE

JUDGEMENT

(1.) I agree to the order proposed to be passed by my learned brother. In view of the elaborate arguments addressed to us on certain aspects of the case and in view of the fact that the case was referred by a learned single Judge to a Bench of two Judges, I wish to add a few observations of my own.

(2.) On the evidence in the case it is clear that the authorities of the Madarsa known as Madarsa Miftahu-1Ulum have made certain new constructions. The town of Mau was till recently a notified area. Shri Girish Chandra, the Sub-Divisional Magistrate of Mohammadabad was the Chairman of the Notified Area Committee. Soon after the constructions had been completed, a tussle appears to have ensued between the Madarsa authorities on the one hand and those who were interested in the Ram Lila and Bharat Milap on the other. I have no doubt in my mind that at first an attempt was made to have a portion of the new constructions demolished under the orders of the Notified Area authorities. In this the Sub-Divisinal Magistrate, Shri Girish Chandra, took a prominent part. This attempt, however, was frustrated because it so happened that the Notified Area Committee, by means of a resolution passed by a majority, declined to order demolition and even passed a resolution to the effect that no encroachment was made on the "Rasta." At this stage, Shri Girish Chandra, acting as a Sub-Divisional Magistrate, under Section 133, Criminal P. C., appears to have issued the preliminary order on 12-7-1949. This order was directed against three persons who represented the Madarsa authorities. Shri Girish Chandra undoubtedly utilized the information that be possessed in his capacity of the Chairman of the Notified Area Committee in issuing the preliminary order under Section 133, Criminal P. C.

(3.) It was strongly contended by Mr. Vishwa Mitra, the learned counsel for the applicants, that, at the very least it was very improper on the part of Sbri Girish Ohandra to exercise his powers as a Magistrate under Section 133, Criminal P. C. when, as the Chairman of the Notified Area Committee, he, along with others, had failed to secure demolition of the building which was alleged to have made an encroachment on public land.