Bharosa Singh and Another vs Kamla Pati Pandey

Rowland, J.—This is a reference by the Additional District and Sessions Judge at Patna recommending to set aside the order of a first class Magistrate convicting the two accused Bharosa Singh and Barhamdeo Singh and sentencing them to fines for an alleged offence u/s 42(d), Bihar Private Irrigation Works Act, 5 of 1922.

The prosecution case was that the Sub-divisional Officer exercising the powers of a Collector under the Act had ordered the repair of an irrigation system in village Goar. The order Ex. 1 specified a number of alangs or ridges which were to be repaired, one of them being, No. 303. The contractor and his men went to perform this work and the labourers were taking earth for the repair of the alang from the field of the two accused. The latter objected that earth should not be taken from their land. They said they would not allow it to be done and they took away the spades and baskets of two of the labourers. The question is whether this amounts to the offence of obstructing the construction of a work ordered by the Collector under the provisions of the Act. The Collector''s powers in the matter of ordering irrigation works to be repaired or added to are in Section 5 of the Act which is to be read along with Sections 3 and 4.

In brief the Collector has power to order any necessary work of repair to be done. The section does not in terms authorize the invasion of any private rights and presumably it is intended that the person executing the work should obtain the consent of those from whom he requires permission to take earth from their lands and other similar facilities. No doubt where the land is parti the consent of the occupier to the taking of earth is ordinarily taken for granted, but I do not find anything in Sections 3,4 and 5 to say that it can be dispensed with.

I am saying nothing about urgent work done u/s 5A in respect of which Section 5B gives the persons whose property has suffered a special right of applying for compensation; but those sections have no application to the present case.

In the present instance the contractor who is examined as P.W. 1 has stated in his evidence: "I had no order to cut earth from the culturable lands. Accused''s fields were culturable lands." If the contractor had been bringing earth from elsewhere and the accused had refused him access to the bunds, then the order of the Magistrate might perhaps have been supported, but I do not think that the order carries with it any right to take away property belonging to private persons and I think in agreement with the Additional Sessions Judge that no offence was committed by the accused in refusing permission for earth to be dug from their culturable field and in preventing the earth from being taken. Mr. K. Dayal for the opposite party has said that the accused have misconceived their remedy; that objection against the order of the Collector ought to be taken before the superior revenue authorities u/s 46 of the Act or failing that before the civil Court u/s 47, but this is not a case of his objecting to the propriety of the order passed by the Collector. The answer is that the accused were brought before a Magistrate and it is the propriety of the Magistrate''s proceedings and the correctness of a conviction that has to be considered.

The reference is accepted, the conviction set aside and the accused acquitted. The fines, if paid, will be refunded.