T.N.R. Tirumalpad, J.C.
1. The learned Sessions Judge has made this reference about the order of the Additional District Magistrate, in Criminal Case No. 8 of 1958, with recommendation that the said order may be set aside.
2. The reference arises out of a petition filed by one party before the Additional District Magistrate, stating that they were in possession of a certain land and that the opposite party were threatening to enter forcible possession of the land and the first party prayed for action Under Sections 384/447 and 341 IPC The learned Additional District Magistrate, called for a Police report and being satisfied that there was an Apprehension of breach of the peace drew up proceedings Under Section 145 Cr.PC and attached the land in dispute and issued notices to both parties to file their written statements.
3. Both parties filed their written statements. The case of the first party was that the land in question had been leased to them for five years by the Forest Department on 17-6-54. The case of the second party was that the second party were allowed to shift their village to the disputed land by the Deputy Commissioner by his order dated 9-5-57 and that the second party men were actually living in houses built in the said land and cultivating the same. The learned Additional District Magistrate called upon both parties to file their affidavits in support of their respective claims, But he was unable to make his mind after a perusal of the affidavits. So, he sent the case to the S. D. C, Thoubal, to report whether the area in dispute was in the Forest reserve after making a local enquiry along with the Forest Officer. He directed the report to be sent by 14-5-58. The report was also received before that date.
4. On 14-5-58, the second party did not appear. Then, the learned Additional District Magistrate proceeded to pass an order stating that the second party were not present to prove their case, that he had seen the lease in favour of the first party, that the land described in the lease covered the. case and that the possession of the second party could not be legally supported, because no subsequent permission was possible without the cancellation of the first lease. The learned Additional District Magistrate therefore held that the land was in the possession of the first party in a legal and regular manner and therefore confirmed the possession of the first party and directed the second party not to interfere with the said possession. It may however be mentioned here that the order did not show that the report of the S. D. C, Thoubal which had been received before 14-5-58 by the Additional District Magistrate, was relied on to pass the said order, though it states that the report has been received.
5. Now the learned Sessions Judge says that the Additional District Magistrate has dealt with the question of the rights of the parties in the proceeding Under Section 145 Cr.PC, that the only question which he could decide under the said Section was the question of actual physical possession and not the right to such possession, that the Additional District Magistrate has not discussed the evidence adduced before him by either party regarding the question of actual possession, but had mainly based his conclusion on the report of the S, D. C, which was not admissible in evidence and that therefore his order should be set aside.
6. There can be no doubt that the criticism of the Sessions Judge is well-founded. The learned Additional District Magistrate was not concerned either with the lease in favour of the first party in 1954 by the Forest Department or with the order of the Deputy Commissioner in favour of the second party in 1957, except in so far as they would help him to decide the question of actual possession. The second party had, in fact, stated that they had shifted their village to the land in dispute and built houses therein and were cultivating the said land. This could easily have been verified by a local enquiry Under Section 148 Cr.PC The learned Addl. District Magistrate also thought that such an enquiry was necessary and deputed the S. D. C, Thoubal, to hold the local enquiry and he had received a report of the said enquiry. But his order would read as if he had not relied on that report.
He does not refer to the contents of the report at all in his order, but refers only to the lease in favour of the first party. I believe that the lease was before him even on 1-4-58, when he referred the matter to the S. D. C, Thoubal for a local enquiry and so no adjournment to 14-5-58 was at all necessary, if he thought that he could deal with the case on the strength of that lease alone. It is clear therefore that the mind of the learned Addl. Dist, Magistrate has been swayed in favour of the first party by the report of the S. D. C, Thoubal, though he studiously refrained from referring to the said report in his order. No doubt, Under Section 148 Cr.PC, the report of the S. D. C, Thoubal could be read as evidence in the case. But it has not been treated as evidence at all by the A. D. M. Thus, the result is that the learned Addl. Dist. Magistrate has allowed his mind to be influenced by the said report, but has dealt with the case as if he was not relying on the said report. Both parties were entitled to be given copies of the said report and the learned Addl. Dist. Magistrate was bound to hear the objections of both parties to the said report before he further dealt with the case. The procedure adopted in dealing with a case Under Section 145 is highly improper and the order passed under such circumstances cannot be allowed to stand,
7. There is more vital objection to the order of the Addl. Dist. Magistrate which has not been referred to by the Sessions Judge. As 1 said, he passed his order on 14-5-58. He had not posted the case on 14-5-58 for hearing, but only for the receipt of the report from the S. D. C, Thoubal. The second party was, therefore, absent as they had every reason to believe that the case will be fixed for hearing to another date after the report of the S. ,D C. and they will be informed of the adjourned date.
The Addl. Dist. Magistrate had no jurisdiction to dispose of the case on a day to which it had I not been posted for hearing. He appears to have heard the arguments of the first party on 14-5-5& in the absence of the second party and that too when the case was not posted for hearing. It is a well-established principle of legal procedure and substantive law that a Court should give an opportunity to both parties to place their respective cases before it on a day fixed for hearing of the case. It is based on the maxim that no man should be condemned without a hearing. Any order passed in disregard of this principle is irregular and has to be set aside,
8. The reference is, therefore, accepted and the order of the learned Addl. Dist. Magistrate dated 14-5-58 is set aside and the matter is remanded for fresh disposal in accordance with law .and in the light of the observations in this order. If necessary, the learned Addl. Dist. Magistrate will again keep the property under attachment pending disposal of the case.