QAMARUDDIN HUSAIN Vs. MUSHTAQ AHMAD

JUDGEMENT

(1.) This is an application for revision or an order passed by the Additional City Magistrate, Lucknow, under Section 147, Criminal P.C.

(2.) On 29 January 1947, Ch. Mushtaq Ahmad made an application before the City Magistrate of Lucknow alleging that his wife and his mother, in-law owned two houses in moballa Goluganj, and complaining that the way by which access was had to these houses, and the drain by which water from these houses flowed into the main drain on the public road were being obstructed by the present petitioners, Qamruddin Hasan, Shamshuddin Hasan and Waziruddin Hasan. He further alleged that when a protest was made against the obstruction the present petitioners threatened to use violence and accordingly there was an apprehension of a breach of peace. He prayed for proceedings under Section 147 being taken in respect of the right of way and the right to flow water through the drain to which reference was made in the application. The City Magistrate, Mr. B. D. Sanwal, called for a police report on this application. He considered the police report and on 14 May 1947, recorded the following order: I have read the police report. Issue notice to the opposites parties to appear before A.C.M. on 4 June 1947. The parties should appear before A.C.M. on 4 June 1917. The notice actually issued in compliance with this order ran as follows: A dispute having arisen concerning the right of use-of a public rasta situate within the limits of my jurisdiction the possession of which land is claimed exclusively by Qamaruddin Hasan, Shamsuddin Hasan and Waziruddin Hasan and it appealing to me on due inquiry into the same that the said land has been open to the enjoyment of Chaudhari Mushtaq Ahmad and the said use has been enjoyed within three months of institution of the said inquiry. I do order the said Qamaruddin Hasan, Shamsuddia Hasan and Waziruddin Hasan, or any one in their interest shall not take possession of the said land to the exclusion of the enjoyment of the right of use aforesaid until they shall obtain a decree or order of the competent Court adjudging them to be entitled to exclusive possession. Given under my hand and the seal of the Court this day of 14 May 1947. Sd. B. D. Sanwal. In due course the case was taken up by Mr. Bisen, the Additional City Magistrate, and after what appears to be a careful inquiry, he came to the conclusion that the complainant had a right of public way over the land in dispute and had been exercising it till immediately before interference by the defendants. He ordered the defendants not to interfere with the exercise of that right. He further ordered that any obstructions put on the way will be removed immediately. The defendants were directed to move "the proper civil Court for establising any claim they may have on the lands." Dissatisfied with this decision the petitioners went in revision before the Sessions Judge of Lucknow. The re-vision was disposed of by the Moveable Civil and Sessions Judge of Lucknow on 31 March 1948. It was dismissed. The petitioners nave now come up to this Court.

(3.) Three points have been urged by the learned Counsel on behalf of the petitioners, (1) That the City Magistrate had no power to transfer the case to the Additional City Magistrate after he had issued a notice as contemplated by Section 147, Criminal P.C.; (2) that there was no danger of a breach of the peace, and (3) that the interim order passed by the City Magistrate amounted to an absolute order and this influenced the opinion of the Additional City Magistrate and resulted in prejudice to his clients. I will deal with these points seriatim.