Patna High Court
Narendra Nath Sarkar And Ors. vs East Indian Railway Company ... on 12 November, 1923
Equivalent citations: 77IND. CAS.807, AIR 1924 PATNA 717
JUDGMENT Kulwant Sahay, J.
1. On the 24th July 1923 the petitioners filed a petition before the Senior Deputy Magistrate of Dhanbad wherein they stated that there was a road within the jurisdiction of the Dhanbad Municipality commencing from the Dhanbad old station lord towards the east of the Indian Railway Institute and leading to Manaitanr village. They claim the said road to be a public road in existence from a very long time. They stated that at any rate the public and the residents bf Manaitanr had been using it as public road for over 70 year's and they claim to have acquired, a right of easement over the said road. It was stated that the second party, namely the East Indian Railway Company, their Chief Engineer, Mr. Johnstone, and their District Engineer, Mr. Hackforth, were trying to convert the road into a private road and to obstruct or prevent the petitioners and the public from using the road. On the 21st July 1923 they had published a notice in the Amrita Bazar Patrika to the effect that "it was notified For the information" of all concerned that the East Indian Rail way private road commencing from, the Dhanbad old station" road; towards the east of the Indian Railway Institute and leading to Manaitanr village will be closed against all traffic from 1st August 1923." They, stated that the description of the load as a private road in the said notice was incorrect and false and it was alleged that the said notice had been published with the object of making the road a private one and that it was the first attempt on the part of the Railway Company to close the road which had bean used by the public during the last 70 years. They stated in their petition that they had plenty of documentary and oral evidence including old registered deeds to support their case and they alleged that any attempt on the part of the Railway Company to close the road on the 1st August 1923 would lead to a serious breach of the peace. They accordingly after stating these facts prayed for a notice upon the Railway Company restraining them from closing the road en the 1st August 1923. The petition was headed as one under Sections 144 and 147 of the Criminal Procedure Code, and having regard to the urgency of the matter it was prayed that notice should at once issue to the Railway Company restraining them from closing the road on the 1st August 1923. Upon receipt of this petition the learned Deputy Magistrate passed the following order on the 24th July 1923.
I shall enquire into the matter and pass order on the 30th July 1923," Before the 30th July 1923 the learned Deputy Magistrate adopted a procedure which is not warranted by law. Instead of holding any enquiry as provided by law either under Section 147 or under Section 144 he went over to the office of the District Engineer, examined certain documents and correspondence relating to the read and made certain enquiries in the office and he ascertained what he calls tie history of the road. He held no enquiry as provided by Section 147, Criminal Procedure Code, at all. He never heard the petitioners, never drew up any proceeding under Section 147 and never called upon the parties to adduce evidence or file written statement. Without asking the petitioners to adduce any evidence and without hearing the petitioners he passed his order on the 30th July 1923 wherein he set out what he calls the history of the road from the information he gathered by examining the documents and making enquiries in the office of the District Engineer. He came to the conclusion that the road vas a private road belonging to the Railway Company. He nowhere comes to any conclusion as to whether the petitioners or the public had acquired any right over that private road by way of easement. After discussing the documents and after placing upon tie file a copy of the agreement executed by one Mr. Mathews in favour of the Railway Company which he had obtained from the District Engineer's office he came to the conclusion that the right of the Railway Company had been established and towards the end of his order he estates." It is true that the road has been used not only by the lessee but by others as well for a considerable time but that does not to my mind affect the Company's right. I cannot, therefore, issue an order under Section 144, Criminal Procedure Code, as prayed for by the petitioners restiaining the Railway Company from exercising their ordinary proprietary rights over their own kind. If the petitioners have any grievance they may go to the Civil Court. There can be no breach of the peace unless instead of doing this they take the law into their own hands which they will do at their own risk.
2. Now to my mind this is in effect deciding the case under Section 147, i.e., declaring the right of the second party without complying with the provisions laid down under the law. If the learned Deputy Magistrate had come to the conclusion that there was no likelihood of a breach of the peace and that, therefore, no action need be taken either under Section 144 or under Section 147, Criminal Procedure Cede, he would have been justified in doing so; but instead of disposing of the matter in that way he takes evidence ex parte by going over to the office of the second party. He makes enquiries in the absence of the petitioners and without giving them an opportunity of adducing their own evidence and examining witnesses and coming to a distinct finding as to the alleged right of easement set up by the petitioners he comes to the conclusion that the right is with the Railway Company and that if the petitioners go upon the land they do so at their own risk. In effect he makes an order in favour of the second party under Section 147 and prevents the petitioners from going upon the land. Such a procedure is wholly unjustifiable. When the petitioners went up before the Additional District Magistrate against this order of the Deputy Magistrate he declined to interfere. He observed that the whole history of the road in dispute was that it was constructed as a carriage approach road to two bungalows especially that of Mr. Mathews and that when the Railway land was acquired and that fencing put up it was never suggested that the access to the village of monaitanr was being closed. Where he gets these facts from it is difficult to say. There does not appear to be anything on the record from which he could come to this conclusion. He says that he went to the locality and made a local inspection. Now these facts could not be ascertained by mere local inspection. It Was necessary to take evidence to come to a finding Upon this point and the learned Additional District Magistrate upon the same materials from which the Deputy Magistrate has come to the conclusion that the Railway Company had established its light to the land has affirmed the older of the Deputy Magistrate and refused to interfere with it. He says "the petitioners have not made out a prima facie case that this is a right of way of that it is the only access to the village or that any breach of the peace is likely unless they deliberately provoke it" without giving them an opportunity to adduce evidence. This is not a satisfactory mode of dealing with the petition and I am constrained to set aside the order of the Deputy Magistrate as well as of the Additional District Magistrate. The petition treating it either as a petition for action under Section 144 or one under Section 147, Criminal Procedure Code must le dealt with according to law. No doubt it would be open to the Magistrate to reject the petition upon the ground that there was no longer and likelihood of a breach of the peace, bit he must dispose of it according to law and not by it finding upon evidence contravention of the procedure laid down by the law.
3. The order of the learned Deputy Magistrate as well as of the Additional District Magistrate must, therefore, be set aside.