INDERDEO NARAYAN Vs. DURGA PRASAD SINGH

JUDGEMENT

(1.) The proceedings out of which this application arises were proceedings taken under Section 144, Criminal P.C., in consequence of a dispute between the first party (petitioners in this Court) who are the mukarraridars of village Hasanpore and the second party (opposite party here) the mukarraridars of Sisamba. The dispute concerned an alleged right of irrigation. Disputes regarding this right led to a civil suit in 1908 which was compromised in 1909. There were disputes at the time of survey and preparation of Record of Rights in or about 1913 and there were disputes leading to proceedings under Section 144, Criminal P.C., in 1933 in the Court of the Subdivisional Officer of Jahanabad, in 1934 in the same Court and in 1935 in the same Court. These last proceedings are the subject matter of this reference, the main contention being that whereas Section 144 may be an appropriate remedy when a sudden emergency arises and an immediate order has to be passed for the preservation of the peace, the repeated use of the section in successive orders dealing with the same matter is not justified by the mere fact that on each occasion on which the section is used it saves the Magistrate a certain amount of trouble in recording evidence and coming to a regular decision of permanent value under Section 145 or Section 147. In this case I think it is quite time to call a halt to the succession of proceedings under Section 144 dealing with the same matter. In this year the proceedings started with a report dated 22 July, 1935 by the chaukidar of Hasanpur-Mirzapur to the effect that there was an apprehension of a breach of the peace regarding the cutting of the ridge of a pyne which issues from the Morhar river and flows into the river Baldaya. The Sub- Inspector who went to the spot on 3 August 1935 recommended that a proceeding under Section 147 should be taken and that in the meantime immediate notices should be given to both parties under Section 144. The first party are interested in keeping the alang intact because by it and the bundh which they themselves erected in the river Baldaya water is retained and caused to flow down the Hasanpur bundh to plot No. 1073. The second party are interested in cutting the alang in order that the water which comes from the Morhar river shall flow into the river Baldaya and not be raised to a level at which there might be danger of overflowing the banks of the pyne and damaging the crops.

(2.) The Sub-Inspector's report was that in the previous year, i.e., 1934 the Sisamba party had made cuts in the alang which permitted water to escape but that the Hasanpur party had been able to irrigate their village with the water of the Baldaya river, but that this year the cuts in the alang had been carried down to such a depth that the whole of the water of the pyne passed into the Baldaya river affecting the irrigation of Hasanpur and causing danger of damage to the bundh of the Hasanpur people. The points which appear to arise for inquiry on the report of the Sub-Inspector are whether the Sisamba party have the right to drain off surplus water by cutting the alang; and if so, whether the Hasanpur people having a right of irrigation are entitled to require that the cutting should be limited in depth so as not to allow he escape of all the water, and damage to the bandh. On receipt of the Sub-Inspector's report the Subdivisional Officer issued notices under Section 144 to both parties in order to prevent immediate breach of the peace. At the same time he called on both parties to show cause, if any, by 26th August 1935. On that date written statements were put in by both sides, each party asserting their own rights and contesting the rights of their opponents. The first party suggested that the proceedings be converted into proceedings under Section 147. This, as I have pointed out above, was what the Sub-Inspector had recommended. However the Magistrate thought Section 147 inappropriate. It seems to me he was in error. This is a case falling exactly within the provisions of Section 147 under which the Magistrate should have proceeded to make a judicial determination of the dispute.

(3.) It is difficult to distinguish the notices issued by the Magistrate calling on the parties to show cause by 26 August from the notice contemplated by Section 147, Clause (1) requiring the parties to attend and put in statements of their claims. The position is similar to that in Kaniz Amina V/s. King-Emperor 1918 Pat 663 where the notices issued were treated by the High Court as equivalent to the preliminary notices under Section 145, Clause (1). In this case I think the proper direction would be that the notices issued on 6 August 1935, be considered equivalent to the notices to be issued under Section 147(1). The parties have appeared and filed written statements and the Magistrate should now inquire into the matter in the manner provided by law. The order under Section 144 being spent it is not required to be set aside, but the proceedings initiated as above will be considered to be pending proceedings before the Magistrate,