Kameshwar Singh Bahadur of Darbhanga vs Emperor

Macphreson, J.—At the instance of the Maharajadhiraj of Darbhanga, who, alleged that certain tenants of the Barwari estate had filled up two openings in the Barwari embankment through which the water of the Tiljuga could escape and asked for action under the penal sections of the Embankments Act, an inquiry was directed by the Collector of Bhagalpur, and it was found that the bandh was a ring bandh for the protection of the area inside it and had on the west the Tiljuga on the opposite side of which is a bandh of the Darbhanga Raj. The opening filled up were ordinary breaches due to earthquake and flood and were quite recent, at least after 1933. But under the notification as to the area under the Embankments Act, even such breaches could not be filled up without the permission of the Collector. The Collector lodged a complaint before the Sub-divisional Officer of Supaul against five tenants and the case was made over to a Sub-deputy Magistrate who on 4th December 1934 convicted them on their own admission u/s 76(b), Embankments Act, for repairing the embankment without the sanction of the Collector and fined them Rs. 5 each for what he described as a technical offence. No investigation was held and the Magistrate, without apparently giving much of any consideration to the matter, added an order "to remove the obstruction within a fortnight."

Later the persons convicted protested to him that they were afraid to cut the embankment and the Magistrate asked the Sub-Inspector of Police to get the obstruction removed. This brought up the Manager of the 9 annas Barwari estate, but the Magistrate set out that he had no jurisdiction to revise his order and directed him to the District Magistrate. The District Magistrate on 18th July 1935, long after the period of appeal had expired, modified the order of the Magistrate by setting forth that the direction to remove the "obstruction" within a fortnight need not be carried out, remarking that the accused had actually done a good service in filling up the breaches. Against this order the Maharajadhiraj has obtained the present rule. When the rule came up for hearing, this Court issued a rule upon the Maharajadhiraj and the other persons concerned to show cause why the order of the Sub-Deputy Magistrate "to remove the obstruction within a fortnight" apparently passed by him u/s 79, Bengal Embankments Act, 1882, should not be set aside. Mr. Gupta for the Maharajadhiraj urges that it is late in the day to set aside the Sub-Deputy Magistrate''s order and that there are other ways in which its effect may be nullified. The District Magistrate now submits that both orders should be set aside. In my judgment the District Magistrate is correct. Quite clearly the order of the District Magistrate dated 18th July 1935 passed otherwise than in appeal that, an order of the Subordinate Court need not be carried out, was without jurisdiction and must be set aside. It should be noted that the District Officer definitely acted as and signed himself as District Magistrate. He did not purport to act as Collector for which reason when an effort was made by the Maharajadhiraj to have his order set aside by the Commissioner the latter was unable to interfere.

Equally clearly the order of the Sub-Deputy Magistrate to remove the obstruction as he called it was in the circumstances entirely improper, and it is set aside. That order u/s 79, Bengal Embankments Act, 1882, was most ill-considered. The system of embankment in North Bihar is very complex, and it is, as indeed the Commissioner pointed out,

extremely hazardous to interfere with them in any way without the advice of a competent engineer and full enquiry.

There was here a case of accidental breaches in the embankment and the offence was a technical one as the Sub-Deputy Magistrate himself set out. That no order u/s 79 could appropriately be passed is manifest from the attitude of two different District Officers, who apparently would, as Collectors have given sanction to repair if asked for it.. What the Collector desired to penalize was repair without his sanction: there is every indication that he was not averse to the repair of the breaches in itself, if his formal sanction had been taken. Accordingly the order of the Sub-Deputy Magistrate, dated 4th December 1934, is set aside in so far as it directs the persons convicted to remove the "obstruction" within a fortnight. Both rules are therefore made absolute. It may be observed that cases under this Act ought preferably to be heard by Magistrates of experience.