SHAHABUDDIN AHMED Vs. ABDUL KADER

JUDGEMENT

(1.) This Rule has been issued to show cause why the order passed by the Sub-Divisional Magistrate of Munshiganj on the 4 January 1926 should not be set aside on Grounds Nos. 2 and 3 of the petition. It appears that proceedings under Section 133 of the Code of Criminal Procedure were drawn up on the 4 March 1925 by Mr. M.C. Ghose, the then Sub-Divisional Magistrate of Munshiganj against nine persons who were named in the said proceedings. The proceedings related to the removal of an obstruction from what was alleged to be a halat. Notices of these proceeding were issued, and it appears from the report of the serving peon that they were served upon eight out of the nine persons. The report runs to this effect : Opposite parties Nos. 1, 3, 4, 5, 7 and 8, although they were present at the time when the notices were tendered to them for service, did not give, any receipt and upon that the said notices were served by affixing them on some conspicuous part of their dwelling house; and as regards Opposite Parties Nos. 2 and 6 the report was to the effect that they were not present and that the notice?, were served on the persons who were in their joint family house. Whether his service was valid or not is a matter with which we are not concerned at the present moment.

(2.) It appears further that thereafter the learned Sub-Divisional Magistrate Mr. M.C. Ghose, on the 14 April 1925, apparently being of opinion that the service was sufficient, recorded the following order: Second party absent. Report shows notices personally served. Rule made absolute. Ask police to clear the obstruction.

(3.) On the 19 December 1925 one of the parties filed a petition before the Sub-Divisional Magistrate, Mr. R.B. Mukerji who had in the meantime succeeded Mr. Ghose alleging that the opposite party did not claim the plot of land on which the obstruction is alleged to have stood and that it was impossible to fill up the excavation and praying that orders might be passed on the first party to fill up the ditch at their own costs if they so desired. The learned Magistrate thereupon on the 4 January 1926 passed an order directing that the order previously passed as aforesaid for the removal of the obstruction should be withdrawn. This is the order which is complained of in this Rule. The ground upon which the Magistrate passed this order appears to have been that the ditch had been in existence for more than 30 years and that only one of the parties, namely, Abdul Kader who was a Sub-Inspector of the Bengal Police and was posted at Munshiganj had not evidently been served with any notice in connexion with the proceedings under Section 133. In our opinion this ground did not give any jurisdiction to the learned Magistrate to pass the order cancelling the order made on the 4 April 1925 to which we have already referred.