HAR KISHUN SINGH Vs. CHHOTAN MAHTON

JUDGEMENT

(1.) This appln. in revision is directed against an order made by the learned Sub-divisional Mag. of Bihar in a proceeding under Section 144, Cr. P. C. This proceeding was instituted in consequence of an apprehension of a serious riot occurring between men belonging to four villages over the right to take water from a stream known as the Saraswati Nadi. Two pynes take off from this stream at point almost opposite to one another & irrigate land in Sabalpur & Naipokhar respectively. When the record of rights was prepared, the level of these two pynes was higher than the level of the bed of the Saraswati river, & in order that water might be taken into the pynes, a bandh was put across the river. This bandh consisted of blocks of stone & kankar. The other two villages concerned are Panditpur & Nahub which are situated about a mile or so further down the course of the stream. These two villages are also irrigated by pynes which take off from the stream more or less opposite to one another. The men of Panditpur & Nahub, being in great need of water owing to the then prevailing drought, were anxious not merely to deepen the bed of the stream between the bandh & their own pynes but also to alter the bandh in such a way as to make water percolate through it. Apparently a large quantity of silt had been deposited on the bandh & the men of Panditpur & Nahub wished to remove this mud which had, as it were, caked on to it & transformed the bandh into a solid mud bandh. The learned sub-divisional Mag. made an order restraining the men of Sabalpur & Naipokhar from interfering with the men of Panditpur & Nahub while they were cleaning or deepening the channel of the stream at any point beyond & distance of one hundred yards from the bandh. As to the portion of the stream immediately below the bandh & as to the bandh itself, the learned sub-divisional Mag. stated in his order that nothing should be done unless he himself were present & directed it to be done. It further appears from his order that he did not intend to make any alterations in the bandh or in this part of the bed of the stream except in the presence of the pleader-commr. who, had, at instance relied the survey map, & of the pleaders appearing for both parties. An appln. in revision was preferred against the order of the learned sub-divisional Mag. & this appln. was dismissed by the learned Dist. Mag. The order of the learned Dist. Mag. was made on 4-12-1950, & on the day following the present appln. in revision was made to this Ct. In admitting the appln. my Lord the Chief Justice directed that there should be a stay of further proceedings. A copy of this order was sent out by the office of the Ct. in accordance with the usual practice, on the day on which it was passed. Unfortunately, however, the copy was not sent, as, I think, it should have been, to the Ct. of the sub-divisional Mag. but to the Ct. of the Dist. Mag. In consequence of this & of some most regrettable delay which took place in the office of the Dist Mag., the order did not reach the sub-divisional Mag. until-11-12-1950. Now, it so happened that on 10-12-1950, the Dist. Mag. & the sub-divisional Mag. were both at Rajgir on other business, & in connection with that business had to go to the immediate vicinity of the bandh. Certain men belonging to Nahub & Panditpur approached the sub-divisional Mag. & asked him to take the opportunity of his being there to go & make the alterations, which he proposed to make, in the bandh & in the bed of the stream. The learned sub-divisional Mag. gave them a reply which led to their going to the stream & proceeding to dig it up. At 11 a. m., that is, an hour or so after the villagers of Panditpur & Nahub had been to him, another individual appeared & told him that the H. C. had ordered a stay of further proceedings. In support of what he said, this man produced a letter which is said to have been written by the advocate who appeared for Bajo Singh of Sabalpur in the present appln. in revision to the pleader who had appeared for him in the Ct. of the sub-divisional Mag. The sub-divisional Mag. declined to act on this assurance that a stay of proceedings had been granted while the Dist, Mag., it is said, took the letter & tore it up. This has not been specifically denied by Mr. K. N. Singh in his affidavit & I must take it that this is what acstually happened. The Dist. Mag. & the sub-divisional Mag. went back to Rajgir to complete their other business & a couple of hours or so later while they were in the inspection bungalow, they were1 told that the men of Sabalpur and Naipokhar had collected a large mob, & that there was an immediate apprehension of a breach of the peace. The sub-divisional Mag. at once hastened to the scene of occurrence &, fortunately, on his arrival, the mob which had been collected & some men in which were armed dispersed. The petnr., Bajo Singh, then applied to this Ct. asking that a rule should be issued on Mr. K. N. Singh, the Dist. Mag., & on Mr. S. K. Mukherjee, the Sub-divisional Mag., requiring them to show cause why they should not be committed for contempt of Ct. on the ground that they had ignored or disobeyed the order staying proceedings. A rule was issued by my Lord the Chief Justice & Reuben J. & the rule has been heard along with the appln. in revision. I will deal in the first place with the appln. in revision.

(2.) It is, I think, perfectly clear that the order of the learned Sub-divisional Mag., or, at all events, that portion of it relating to the bandh & to the bed of the stream immediately below the bandh was an order which was made wholly without jurisdiction. As I have said the learned Sub-divisional Mag. proposed to go in person to the bandh & to the bed of the stream & to make certain alterations in them with a view to restoring them to the condition in which he believed them to have been, when the record of rights was prepared. Mr. Nawal Kishore Prasad, for the opposite party, said that a mandatory order could be made under Section 144, Cr. P. C., & cited in support of his contention the decision of Agarwala J., sitting singly, in Lachmi Narayan v. Nandkishore, A.I.R. (27) 1940 Pat. 57 : (41 Cr. L. J. 98). That, however, was a case in which an order was made for the removal of a bandh & the party against whom the order was made had an opportunity of appearing & showing cause against its removal. What, however, the learned Sub-divisional Mag. proposed to do in the present ease was himself to make certain alterations in the bandh & in the bed of the stream. Presumably, he would, at the time, have considered any objections which might have been raised by the men of Sabalpur & Naipokhar; but even so, it is not at all as if he had made an order requiring certain specific things to be done & given the parson against whom that order was made an opportunity of showing cause against it. Moreover, apart from this, the learned Sub-divisional Mag. appears to have acted on little or nothing more than a mere speculation that, at the time when the record of rights was prepared, a certain volume of water must have percolated through the bandh & reached Panditpur & Nahub. The entry in the fardabpashi, however, probably recorded no more than the fact that, at the time when it was prepared, the bandh was a bandh of a certain kind. There appears to be nothing in the fardabpashi to suggest that the men of Panditpur & of Nahub had any right to take water from the stream unless & until the level of the water in the stream was sufficient to overtop the bandh & reach their pynes in the ordinary course of gravitation. If the men of Panditpur & Nahub assert a right to have the bandh altered & to have the bed of the stream deepened immediately in front of the bandh, they must institute a suit & ask for a mandatory injunction. Clearly, unless evidence is adduced, it is impossible to say what changes have occurred since the record of rights was prepared, & whether in spite of these changes & of the length of time which has elapsed, the men of Panditpur & Nahub possessed & still possess the rights which they assert. Mr. Nawal Kishore Prasad for the opposite party contended that, in any event, the other part of the order made by the learned Sub-divisional Mag. could be supported. I agree that as the men of Panditpur & Nahub have a right to take water from the stream through their respective pynes, they must, as a necessary corollary, also have a right to clean out the bed of the stream from time to time so as to enable water to enter their pynes. If any further dispute arises regarding this part of the stream, the learned Sub-divisional Mag. would, I think, be well advised to deal with the matter under Section 147, Cr. P. C., unless it is quite plain to him that the men of Panditpur & Nahub are undoubtedly exercising a right which they possess, & the men of Sabalpur & Naipokhar are unreasonably obstructing them in the exercise of that right, in which ease, action might perhaps appropriately be taken under Section 107 of the Code. The order of the learned Sub-divisional Mag. has ceased to be operative, & it is, therefore, not necessary to make any order formally setting it aside. With these observations the appln. in revision will be dismissed.

(3.) I now turn to the' rule which has been issued on Mr. K. N. Singh & Mr. S. K. Mukherjee to show cause why they should not be committed for contempt. A decision in this matter clearly depends on what, exactly, was said by the Sub-divisional Mag. to the men of Panditpur & Nahub. Mr. Mukherjee in his affidavit says that, while he permitted them to go & dig. in or clean the bed of the stream, he made it quite clear to them that they were to do nothing in the area immediately below the bandh. Mr. Mukherjee also says that, when he went to the stream in order to prevent the riot or disturbance which was impending, the men of Panditpur & Nahub were carrying on their operations at a point some five hundred yards or so away from the bandh. In the affidavit of Bajo Singh on the other hand, it is stated that the operations were being carried on within, what I may call, the prohibited area. Mr. Sri Narayan Sahay has said that, if the operations were in fact being carried on well outside that area, the men of Sabalpur & Naipokhar would not have collected in the manner they did, as they had not previously resisted the men of Panditpur & Nahub in cleaning out the lower portion of the bed of the stream. The learned counsel has also pointed out that on 10-12-1950, the period of sixty days during which the order was to be in operation expired & suggests that-the men of Panditpur & Nahub deliberately went to the prohibited area as they knew that on the day following the order would cease to have any effect. It is not, however, at all clear to me that any digging had, in fact, been done previously in any part of the stream. It appears to me quite possible that neither party did anything as an appln. in revision had been made to the learned Dist. Mag. In any event, it is quite clear from the order made by the learned subdivisional Mag. that he intended that nothing whatever should be done in this prohibited area unless he were himself present to direct the operations. That being so, it appears to me in the highest degree unlikely that he intended that on 10-12-1950, when he himself was engaged elsewhere on other business, the men of Panditpur & Nahub should be permitted to go & carry on such operations as they themselves chose in it. I must accept the affidavit of Mr. Mukherjee that he made it clear to the men of Panditpur & Nahub that they were not to enter or do anything in the prohibited area although they might clean out or dig in the bed of the stream below it. So far as Mr. Mukherjee is concerned, the order made by this Cr., was an order prohibiting him from doing what he proposed to do in this prohibited area, & if, as I am satisfied in the ease, he did & said nothing to countenance anything being done in it, there has been no contempt of any order of this Ct. Mr. Sri Narayan Sahay, for the petnr., said that the intention of this Ct. was not merely to atop the learned sub-divisional Mag. from himself carrying on or directing operations in this prohibited area, but also to stop anything being done in any part of the stream between the two sets of pynes. This may conceivably have been so, but if it was, the proper order to have been passed, would have been an order in the nature of an injunction addressed to the parties belonging to Panditpur & Nahub. I am not prepared to say that any duty was cast on the sub-divisional Mag. to see that nothing whatever was done anywhere in the bed of this stream pending the order finally made on the appln. in revision by this Ct. There ha3 been a certain amount of argument at the bar as to whether the Dist. Mag, Mr. K. N. Singh, was shown justified in disregarding the letter which was to him. This point is really one which is now of no more than academic importance. I ought, however, I consider, to make certain observations regarding it. When an order of stay or other such prohibitory order has been made by this Ct. & when the subordinate Judge or Mag. is informed of the order by an advocate or pleader, he ought, I consider, ordinarily to accept what is stated by the advocate or pleader, & stay further proceedings. Certainly, he ought, to do so, if the advocate or pleader is in a position to satisfy him as to the source of his information & is prepared to support it by an affidavit. The reason why the subordinate Judge or Mag, should invariably take such a course is that an advocate or a pleadar is an officer of the Ct. & is not likely to supply information as to the correctness of which he is not himself completely satisfied. If an advocate or pleader acts improperly or carelessly & it eventually turns out that no prohibitory order has been made by this Ct. suitable action can be taken against him. If, on the other hand, the subordinate Judge or Mag. disregards such information & continues the proceeding, he may find it a matter of difficulty to satisfy this Ct. that he believed in goodfaith that no prohibitory order had been made. There are decisions both in India & in England which show that when a subordinate Judge or Mag. disregards a prohibitory order of which he has been given a notice in this way, it amounts to a contempt of Ct. vide Sati Nath v. Ratanmani, 14 I. C. 809 : (15 c. L. J. 335) & Ex parte Langley, (1880) 13 Ch. D. 110: (49 L. J. Bk. 1). Mr. Sri Narayan Sahay, for the petnr., contended that it was the duty of the sub-divisional Mag. to examine the document which was handed to him by Sheodeni Singh, & that if, on examination, he saw any reason to distrust its authenticity, to require Sheodeni Singh to put in an affidavit. The learned Counsel for the petnr. supported this part of his argument by reference to Babu Ratnessari v. Empress, 2 C. W. N. 498 ; Hem Chandra v. Mathur Santhal, 16 C. W. N. 1031: (13 Cr. L. J. 766) & Gouri Shanker v. Collector of Muzaffarpur, A. I. R. (12) 1925 Pat. 553 : (26 Cr. L. J. 965). These decisions support to some extent the contention which has been put forward. None of them, however, goes so far as to lay down that, when a subordinate Judge or Mag. neglects to take such steps to satisfy himself as to the correctness of the information sup plied to him that a prohibitory order has been made, he is liable to be committed for contempt of Ct. I think myself that Mr. K. N. Singh acted improvidently in tearing up this letter without apparently reading it, & that he would have been better advised to have read it & to have considered whether or not it did not show, satisfactorily enough for him to have acted on it, that an order staying further proceedings had been made by this Ct. It is, however, quite impossible to say that either he or Mr. Mukherjee deliberately committed any contempt of Ct. The rule which has been issued on them will accordingly be discharged, but in the circumstances, I would not make any order for costs against the petnr. Bajo. Singh.