RAM BIHARI SAHOI Vs. SHYAM BIHARI LAL

JUDGEMENT

(1.) This application by the second party is for revision of the final order dated 2nd August, 1979 passed in a proceeding under section 145, Criminal Procedure Code by Mr. R. K. Singh, Executive Magistrate of Muzaffarpur West declaring the possession over the case land measuring 8 decimals bearing Khasra no. old 2774 (New 82) in favour of the first party- opposite-party. The dispute was between the Eye Hospital (2nd party) and the Kejriwal Maternity Hospital (first party) both of Jhuran Chapra in the town of Muzaffarpur. The sole basis of his order is his local inspection made on 28th July, 1979. The proceeding under section 145 was started on 13th January, 1979. The case was in the file of the Sub-divisional Magistrate. On 19th March, 1979 while he was acting as S. D. O. he transferred this case to his own file for enquiry and disposal.

(2.) It is peculiar case. No evidence was taken and no date was fixed for hearing the case. No party had applied for local inspection but the Executive Magistrate made the local inspection on his own motion. The Sub divisional Magistrate said that the land was Gair-Mazrua Aam. On 20th February, 1979 the members of the second party made an application before the Sub-divisional Magistrate that in view of the recent municipal entries and the decision in the Tanaza case and in view of the observation of the Sub-divisional Magistrate is order dated 13th January, 1979. Government should be made a party. The matter was fixed for 19th March, 1979, On that day Mr. R. K. Singh, the Executive Magistrate, was acting as S. D. O. As already stated, he transferred the case to his own file on that day for enquiry and disposal and fixed 30th March. 1979 for hearing the petition. Some more dates were fixed thereafter. The first party-opposite party filed a rejoinder on 17th July, 1979 to the petition dated 20th February, 1979 which had been filed by the 2nd party. Ultimately he heard the parties in the matter of addition of the Government as a party on 17th July, 1979 and also on 26th July, 1979 but no order was passed then or at any time thereafter. Another date fixed was 27th July, 1979. On that day he said that he wiltheld local inspection on 28th July, 1979. On the next day (28th July, 1979) he made local inspection. Another date fixed in the case was 31st July, 1979. On that day he said that he was busy. He fixed 2nd August, 1979 as the next date for his enquiry report and for orders. On 2nd August, 1979 he passed the impugned order declaring the possession of the first party solely on the basis of his local inspection without hearing the parties and without any local evidence. Thus, the sole basis of his final order is his own local inspection. One of the peculiar feature of the case is that he gave no opportunity to the parties to make any objection to his report of local inspection. Local inspection is made in order to understand and appreciate evidence in the case. In this case there was no evidence before him to be appreciated. In Ms. Ram Ratan Kuar and others v. Tarakh Nath Bhattacharji and other (A.I.R. 1922 Patna 249) it was observed "the object of local inspection is to understand and appreciate the topography of the land in dispute in order to aid the Magistrate in appreciating the evidence offered in Court. But the local inspection cannot take the place of legal evidence, much less than the result thereof can be used as a basis for the decision. In that case also the Magistrate had based this decision on local inspection. It was held that the entire order of the Magistrate was vitiated on that ground alone. In Lunkhothang Mangru and another v. Mochom Anal Thumbol Anal, (A.I R. 1960 Manipur 43) it was held that though the report of the S. D. O. could be treated as an evidence under section 148, Criminal Procedure Code, it had not been so treated at all by the Magistrate, that both parties were entitled to copies of the satd report and the Magistrate was bound to hear the Objection of the parties to the said report before he further dealt with the case. In the present case also the Magistrate did not give any opportunity to the partties to look into the inspection report or to file any objection to it and a chance to challenge the correctness of his observation. Moreover it seems to me that the Executive Magistrate has in fact turned himself into a witness in the case and he has gone out of his way to help the first party. He has violated the principles of natural justice. A case has to be decided according to the procedure established by law and not according to the whim of the Magistrate. The Executive Magistrate has shown complete disregard of the provisions of section 145 as in the present case.

(3.) Counsel for the opposite party has pointed out that the local inspection report is dated 28th July, 1979 and, therefore, it cannot be said that he acted upon it all of a sudden. But this contention has no force. The order dated 31 July, 1979 states that the Executive Magistrate was busy and hence the case adjourned to 2nd August, 1979 for report and order. It was rightly contended by the petitioners that the possibility of ante dating the report cannot be ruled out. Though, I think, that it cannot positively be said as to whether the local inspection report was in fact ante-dated but there can be no doubt that a doubt is created on account of the order dated 31st July, 1979 with regard to the genuineness of the date of the report. Another strange feature of the case is that the final order was passed on a date which was not a date fixed for hearing the case on merits. The application made by the second party for addition of the Government as a party had been made on 20th February, 1979. Order on that application was to be passed on 26th July, 1979 as already stated, no order was passed on that day or on any other day. Thereafter, local inspection was made and final order was passed on 2-8-1979. It is, thus, clear that the case on merits was decided not only without hearing the parties but on a day to which it had not been posted for hearing. In my opinion, the Magistrate had no jurisdiction to do so. In Lunkhothang Mangru and another v. Mechom Anal Thumbol Anal (A.I.R. 1960 Manipur 43) it was observed 'It is well-established principle of legal procedure and substantive law that a court should give an opportunity to both parties to place their respective cases before it on a day fixed for hearing of the case. It is based on the maxim that no man should be condemned without hearing. Any order passed in disregard of this principle is irregular and has to be set aside". Another strange feature of this case is that although the Executive Magistrate was of opinion that Government was a necessary party, the land being Gairmazrua Aam, he never made the Government a party to the case in the final order. He has observed that Government was not made party because in his opinion as expressed in the final order there would have been delay. He has said in his order that the land was recorded in the survey in the name of Bihar Sarkar, and it had not been settled with anybody as yet, still no effort was made by him to make the State of Bihar a party to the case. In the absence of the State of Bihar the Executive Magistrate made an observation in his final order that Bihar Sarkar had no concern of any kind with the disputed land.