Greaves, J - (1.)The petitioners were convicted on the 6 June, 1923, by the District Magistrate of Chittagong under the provisions of Section 147, I.P. Code, and sentenced to varying terms of imprisonment and they were all bound down under the provisions of Section 106, Crim. Pro. Code. They appealed to the District Judge but their appeals were dismissed on the 5th September, 1923. This Rule was granted against their conviction and sentence on the 27th September 1923.
(2.)The facts are as follows : In thana Fatikchari in the District of Chittagong, there is a hill stream called Dhurung Khal which flows from the range of hills to the north of Chittagong passing in its course through or near to the villages of Dhurung, Sundarpur and Ekkolia. The villagers of these villages had been accustomed to use the water of this stream for drinking purposes; for domestic purposes and for cultivation and also for floating down timber from the bills. The stream in the rainy season often overflowed its banks breaking through its western bank despite the erection of bundhs from time to time. As a result the villagers on the lower reaches of the stream suffered from scarcity of water. Proposals for the erection of a strong bundh to prevent the overflow on the western bank were considered from time to time, but nothing was done, and eventually the old bed of the stream was dried up owing to the water escaping through the breach on the western bank, Certain persons, amongst them one Enayet Ali Chowdhuri, got settlement of the old bed of the stream and cultivated it, but the settlement was made on terms that if steps were taken to make the stream flow in its old bed it should be vacated.
(3.)Ultimately a sum of Rs. 11,000 was raised by public subscription and a bundh was erected on the western bank in 1918 and the stream flowed once more in its old bed. The erection of the bundh was made with the approval of the then Collector and under the supervision of the District Board Overseer. During the rains of 1918 a breach occurred on the eastern side of the stream and a road was damaged. Proceedings under Section 133 were accordingly instituted against the persons who had erected the bundh for its removal, and during the pendency of these proceedings, a civil suit (No. 90 of 1918) was instituted against the 1 and 2nd parties in the Section 133 proceedings claiming rights in the flow of water along the old bed of the stream, for its maintenance and for keeping the bundh intact. An order was passed in the Section 133 proceedings in July, 1919 for removal of the bundh within 7 days, but this Court stayed the proceedings pending the decision of the Civil suit. The Secretary of State was made a party in the Civil proceedings and ultimately the suit was decreed and a perpetual injunction granted against all the defendants including the Secretary of State, the right of the plaintiff being established to divert the flow of the stream into its old bed. Subsequently the order under Section 133 directing j the removal of the bundh was set aside by this Court. The Secretary of State appealed against the decree in the civil suit and a compromise decree was passed on the 17 March, 1921, providing (1) for the re-excavation by the plaintiff of the old bed of the stream, some part of the work to be done before 31 March, 1921 and for the erection by them before 30 April, 1921, of a bundh on the eastern side of the stream in accordance with the District Engineer's report, (2) that if the work of excavation and of bundhing the eastern bank was not completed by 30 April, 1922, the injunction would be cancelled and the respondents (that is, the plaintiffs in the suit) would raise no objection to the defendants or any other person cutting the western bundh and bundhing the eastern bank. In June 1922 the bundh on the eastern bank was damaged and one of the defendants in the Civil suit applied to the Collector of Chittagong for permission to remove the western bundh. The Collector on the 21 June, 1922, directed the khas Tahsildar to enquire and report and as a result of his report passed an order on the 29 June in the following terms: 29 June, 1922, Bead reports of the khas Tahsildar Rouzan and the solenama in accordance with which the District Judge decreed the appeal on 21 March, 1922. It is clear that the conditions had arisen which authorise the defendants without objection by the Opposite Party to cut the western bundh. I am informed that in spite of this, opposition from the Opposite Party is apprehended. The very heavy rains of the past week makes this a very urgent matter. Issue order under Section 144, Cr.P.C., to Abdul Bari Chowdhury, Jugabandhu Moharer and Ahmed Ullah Chowdhury and to the public generally to abstain from interfering when the western bundh is cut. Serve it through Sub-Inspector, Fatikchan and tell him to be present when the bundh is cut. (Sd.) L. Birley,District Magistrate.