GOBINDACHANDRA PODDAR Vs. SUBDIVISIONAL OFFICER

JUDGEMENT

(1.) This is an appeal by the plaintiffs, who have been unsuccessful in the Courts below, in a suit for a perpetual injunction restraining the defendant from demolishing a pucca ghatla in execution of his order, dated 16 August 1926. The order was made by the defendant in his capacity as the Subdivisional Officer of Chandpur and Supervisor of the Chandpur Khal, purporting to act under Secs.14 and 16, Canals Act (Bengal Act 5 of 1864). The order was made on the ground that the ghatla in question was an obstruction to the line of navigation " and a nuisance."

(2.) The contention urged in appeal is that the place where the ghatla is situate is not within the line of navigation. It has boon pointed out that the khal at the spot is about 750 feet wide, that there are other obstructions on both sides of the ghatla projecting much farther into the khal, and that for several months in the year the place where the ghatla is situate is dry land. It has been argued that the expression " line of navigation " means the stretch of the khal which is ordinarily used for the purposes of passages of boats, etc., and that the place in question does not satisfy that test. In support of this contention reference was made to Jugal Das Dalai V/s. Queen-Empress [1893] 20 Cal. 665 which was a case under Secs.283. and 290, I. P. C, and in which it was held that what was contemplated in those sections was the ordinary navigation of the river.

(3.) The question as to what is the meaning of the expression line of navigation," as used in the Canals Act, came up before me for consideration in a criminal case in which an accused had been convicted under Section 16 of the Act. It was the case of Gokulchand Baral v. Emperor Calcutta Cr. Revn. No. 113 of 1928, decided on 5 April 1928 by <JGN>Mukerji</JGN> , J. In that case, a very interesting contention was put forward on behalf of the defence, namely, that the limits of the line of navigation are co-extensive with the extent of the rights of the Crown to the bed and shores landwards and they have to be fixed by the line of the medium high tide between the springs and neaps. This contention was sought to be supported by reference to Blundell V/s. Cotterall [1821] 5 B.&Ald. 268 Attorney-General v Chambers [1854] 4 De G.M. & G. 206 and other cases. This contention was overruled and the meaning of the expression line of navigation " was expressed in these words: Line of navigation has been defined in the Act as meaning any navigable channel subject to the provisions of the Act. The word " channel" has been defined in the Act as including any river, canal, khal, nala or waterway, whether natural or artificial. There is, as far as one cam see, nothing else in the Act which can serve to elucidate the meaning of the expression line of navigation any further, except that in Section 15 of the Act a somewhat curious expression is used, namely, obstruction to the free and safe transit of such line of navigation. . . . In the absence of any further elucidation of the words line of navigation than what is contained in the definition of that expression in the Act and in view of what a channel means under the Act, I am inclined to take the view that, in order to determine whether a particular point is, within the line of navigation or not, all that has to be seen is whether it is a point at which the channel is in fact navigable, giving to the word navigable the ordinary meaning that it bears; in other words, whether at that point the channel allows the passage of boats at all seasons of the year.