GOBARDHANDAS KHAKALIA Vs. CHATURBHUJ KHAKLALIA AND ANR.

JUDGEMENT

(1.) THIS petition of revision is directed against an order of the Deputy Commissioner, Nowgong, by which the application of the petitioner, who was the 1st patty in the Court of the learned District Magistrate for initiation of proceedings under Section 147, Criminal P. C., was disallowed.

(2.) THE dispute leading to the proceeding from which the present revision petition arises relates to a small passage 17 inches wide between the house of the parties to the dispute. The 1st party, the petitioner, claimed the right of user over the disputed pathway. His case was that both the parties had agreed to reserve 8½ strip of their land for the purposes of a drain. The entire land was also to be used as a pathway. On 3rd January 1950, the petitioner applied for an order under Section 144, Criminal P. C., directing the 2nd party to remove the obstruction put up by him along the drain. His case was that he had for the last 30 years maintained an open lane by the south of his building for the drainage of water as also for passage of men, sweeper and for removing night soil, etc The opposite party began constructing a house and tried to encroach on the said lane. The matter, however, was amicably settled on 10th February 1949. According to the arrangement then made a narrow lane about 17 inches wide was left open between the houses of the two parties. Each side surrendered 8½" from his land for the purpose of drainage and for use as a pathway by both the parties. Subsequently the 2nd party tried to put up a temporary moveable obstruction along the drain. The petitioner objected to their placing the obstruction. He further stated that the opposite party threatened to have recourse to violence if the petitioner tried to remove the obstruction which blocked the pathway. The dispute, he pleaded, was likely to result in a breach of the peace. On this petition, the learned District Magistrate addressed an order to the officer in charge of the police station directing him to keep the path open. He further ordered that both the parties should appear before him on 9th January 1960. The police officer visited the place on 5th January 1960. The opposite party asked for time till 8th January 1960 for removing the obstruction. They also stated that they were aware of the order of the District Magistrate and would carry out the same. On 6th January 1950, the opposite party put in a statement repudiating the allegations made by the petitioner in his petition dated 3rd January 1950 and they protested against the order which was served on them on 6th January 1960. On this, the District Magistrate ordered the to be put up on 9th January 1960. He also vacated his order passed on 3rd January 1960 and ordered that till then the obstruction placed by the opposite party was to remain. On 9th January 1960, he inspected the locality. After that without taking any evidence arguments were heard on 18th and 21st January 1950. The petitioner put in another petition requesting formal proceedings to be drawn up under Section 147, Criminal P. C., if the order passed on 3rd January could not he made absolute under Section 144, Criminal P. C. In this petition it was also alleged that a breach of the peace was imminent by reason of the dispute relating to the pathway in question between the parties. The final order was passed on 20th February 1960. In this order the learned District Magistrate considered the question whether proceedings under Section 147, Criminal P. C., be drawn up or not. The finding arrived at by him was that the dispute was with respect to a narrow passage about 17" wide between the houses of the parties. In his view, the passage could not have been put to any general use and was meant only for use of the sweeper. As a result of his spot inspection on the 9th, he also came to the conclusion that the opposite party had placed the obstruction and was not willing to give up his 8½" strip of land unless a latrine, which the first party had constructed, was removed from its present site. His reasons for declining to proceed under Section 147, Criminal P.C., are given in one passage of the judgment, which is as follows:

(3.) MR . Ghose has assailed the correctness of this order. He urges that the procedure adopted by the learned District Magistrate is opposed to the provisions contained in Section 147, Criminal P. C., as also to the principles of natural justice. He gave no opportunity to the petitioner to substantiate his allegations and instead of merely declining to draw up prooeeding3 under Section 147 entered into the merits of the controversy without passing a preliminary order and came to certain findings on points which could have been considered only after the proceedings had been initiated. He even warned the petitioner against doing anything which may lead to a breach of the peace. The order, according to him, is not only illegal but in excess of jurisdiction.