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Rashid Allidina Vs. Jiwandas Khemji and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1943Cal35
AppellantRashid Allidina
RespondentJiwandas Khemji and anr.
Cases Referred and Abdul Karim v. George High School
Excerpt:
- .....lie the premises no. 16, ezra street which along with several other plots were acquired under the land acquisition act for the calcutta improvement trust, as per notification no. 16268 l.a., dated 28th november 1936 published in the calcutta gazette on 3rd december 1936. on 18th august 1941, the present petitioner made a petition to the chief presidency magistrate, calcutta, naming the opposite party 1 jiwandas khemji alone as opposite party and alleging, (1) that on the eastern wall of the petitioner's premises there were six windows on each storey (altogether 18 in number) which were ancient windows and had been in existence for over thirty years 'through which the petitioner had been enjoying the right of light and air; (2) that the opposite party was trying to block these ancient.....
Judgment:

Pal, J.

1. This rule was issued by this Court calling upon the Chief Presidency Magistrate of Calcutta as also upon the opposite parties to show cause why the order complained of in the petition should not be set aside on grounds 1, 2 and 8 of the petition. The opposite parties 1 and 2 appeared and showed cause. The petitioner is the owner of the premises No. 17 Ezra Street, Calcutta. On the east of these premises lie the premises No. 16, Ezra Street which along with several other plots were acquired under the Land Acquisition Act for the Calcutta Improvement Trust, as per Notification No. 16268 L.A., dated 28th November 1936 published in the Calcutta Gazette on 3rd December 1936. On 18th August 1941, the present petitioner made a petition to the Chief Presidency Magistrate, Calcutta, naming the opposite party 1 Jiwandas Khemji alone as opposite party and alleging, (1) that on the eastern wall of the petitioner's premises there were six windows on each storey (altogether 18 in number) which were ancient windows and had been in existence for over thirty years 'through which the petitioner had been enjoying the right of light and air; (2) that the opposite party was trying to block these ancient windows by erecting a wall on the adjoining premises No. 16 Ezra Road and with this object in view collected a large number of men and materials and had dug out the land adjacent to the petitioner's eastern wall and were proceeding to fix up iron joists thereon in spite of protests from the petitioner and by force and show of force was trying to make construction thereon blocking the petitioner's aforesaid ancient windows. On this petition the learned Magistrate on the same date recorded the following order:

As the matter is urgent and immediate steps appear to be necessary, issue injunction under Section 144 Criminal P.C., on the second party restraining them from proceeding any further with the proposed structure, or from doing anything likely to interfere with petitioner's right of light and air.

2. Opposite party 1 in the present case who was the only opposite party in the above petition appeared on 22nd August 1941 and showed cause by stating that the owner of the vacant piece of land was the Board of Trustees for the Improvement of Calcutta, that the structures complained of were being erected on the said land by the said Board of Trustees and that the opposite party was not erecting the structures or hoarding in question. He further stated that the vacant piece of land in question was acquired under the Land Acquisition Act and the land thereupon vested in the Government free from all encumbrances and easements. After this acquisition, the possession of the land was given to the Calcutta Improvement Trust in this condition and by the said acquisition under the Land Acquisition Act all easements, if any, of the premises No. 17 Ezra Street over the acquired land were totally extinguished. The opposite party had only contracted to purchase the said land free from all encumbrances and easements from the Calcutta Improvement Trust.

3. On this the present petitioner filed a further petition on 23rd August 1941. In this petition, the original opposite party was made opposite party 2 and 'servants and employees of the Board of Trustees of the Calcutta Improvement Trust' were made opposite party No. 1. In this further petition the petitioner referred to the earlier petition as also to the statement of the original opposite party Jewandas made while showing cause, controverted some of the statements made by the opposite party and further stated in paras 8 and 9 of the petition that if the obstruction be allowed to be made it would make a portion of the petitioner's premises unhealthy and insanitary, that substructure would be against the Sections and Rules of the Calcutta Municipal Act, that the petitioner was anxious to avoid an invasion of the rights of easement of his premises and that the proposed structures would lead to obstruction, annoyance or danger to health and disturbance of public tranquillity. Though the Chairman of the Calcutta Improvement Trust was not named in the petition itself as an opposite party the learned Chief Presidency Magistrate made the following order on this petition:

Will Chairman, Calcutta Improvement Trust, please let me know by 30-8, what the facts are and in the meantime stay the construction complained of.

4. On 28th August 1941, the Chairman, Calcutta Improvement Trust, addressed a letter to the Chief Presidency Magistrate stating : (1) that the premises Nos. 14, 15 and 16 Ezra Street were acquired free from all encumbrances and easements under Section 16, Land Acquisition Act; (2) that as the premises Nos. 14, 15 and 16 Ezra Street were acquired by the trust free from all encumbrances and easements, the trust is legally entitled to erect hoarding on them with a view to prevent acquisition of easement over this land. Accordingly the trust decided to erect the hoarding on its property but was obstructed by Rashid Allidina who even went to the length of intimidating the employees of the trust, (3) that the trust had sold a plot of land forged out of the aforesaid acquired premises to Mr. Jivandas Khemji free from all encumbrances and easements and was bound to take steps against the acquisition of new rights of easements. Neither the Chairman, Calcutta Improvement Trust, nor Mr. Jivandas Khemji denied the allegations made by the petitioner that the proposed structure will block his windows rendering the petitioner's premises unhealthy and insanitary. Their case is that the trust is entitled to proceed with the structure as the petitioner's right of easement, if any, was taken away by the acquisition.

5. On 1st September 1941, the learned Chief Presidency Magistrate accepted the contention of the opposite party and declined to issue any injunction under Section 144, Criminal P.C., on the sole ground that from the order-passed by the land acquisition collector at the time he made his award it appeared to the learned Magistrate that it was not open to the petitioner now to claim any right of easement, and that the trust took over the property free from all encumbrances. Against this order of the learned Chief Presidency Magistrate the petitioner moved this Court and the present rule was issued. In showing cause, it is contended on behalf of the Chairman, Calcutta Improvement Trust, that as he was not named as a party in the petition before the Chief Presidency Magistrate the present petition against him is not maintainable.

6. From the facts stated above, it is amply clear that on the allegations made in the, petition the learned Chief Presidency Magistrate considered the Chairman to be the proper party and granted an ad interim injunction against him. He showed cause and ultimately succeeded in having an order in his favour. We are therefore unable to accept this contention of the Chairman and throw away the present petition on this ground. It is further contended that a proceeding under Section 144, Criminal P.C., is primarily concerned with the prevention of disturbance of the peace. In cases, therefore, where the learned Magistrate who is responsible for the peace of his district does not wish to impose an order of injunction, the High Court ought not on principle to interfere with such order of refusal, and re-impose the order which the Magistrate in his discretion has refused to impose. Reliance is placed on Manu Khan v. Sundar Singh ('34) 21 A.I.R. 1934 Pat. 313. We are unable to accept this contention either as a sound one. It cannot be doubted at least after the amendment of Section 435, Criminal P.C., by Section 116, Criminal Procedure Amendment Act, 1923 (Act 18 of 1923), by which Sub-section (3) of Section 435, Criminal P.C., has now been omitted, that the High Court has revisional jurisdiction also in cases disposed of under Section 144, Criminal P.C. Even before this amendment, the High Courts exercised this power of revision under Section 107 of the then Government of India Act and this power has always been considered salutary and necessary.

7. A Magistrate no doubt is responsible for the peace of his district. But from this, it does not follow that the High Court has no duty to see whether this responsibility has been properly discharged in any particular instance. Further, the peace of the district as contemplated by Section 144, Criminal P.C., is not unconcerned with individual interests and the particular individual who feels aggrieved by the interference or non-interference should not be driven out of Court simply because the Magistrate thought fit to act in a certain manner. Moreover Section 144, Criminal P.C., is not limited in its operation only to cases of possible breach of general peace of the district. The section contemplates cases of

obstruction, annoyance, or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

8. It is contended on behalf of the opposite party that the section contemplates only acts which when allowed to be completed will constitute an offence. If the act complained of even when completely done would not constitute any offence, it cannot be prevented under this section. No doubt most of the acts contemplated by this section are of the nature that if not prevented they will develop into an offence. But there is at least one item about which this limited view is not possible. The word 'injury' is defined in Section 44, Penal Code, as denoting 'any harm whatever illegally caused to any person, in body, mind, reputation or property,' and the word 'illegal' is defined in Section 43 of the Code as applicable to 'everything which is an offence or which is prohibited by law, or which furnishes a ground for a civil action.' These definitions are adopted by the Code of Criminal Procedure, by its Section 4(2) for its own purposes. It will thus appear that whenever 'a certain act' or certain measure 'taken, with certain property in possession' of the offender is such as may amount to 'injury' or 'risk of injury' to any person such person is entitled to have the protection of this section. So even if the act or the measure complained of be not such as would amount to an offence when allowed to be completed, if these are only such as when completed would furnish grounds for a civil action only, the protection of the section will extend to the person. In the present case the act complained of is one of obstruction of ancient light and air. This is not 'obstruction to any person' within the meaning of the section. This obstruction, if allowed, may amount to 'an injury to the person' within the meaning of the section, if it in fringes (1) any right of easement or (2) any natural incident of property right apart from any acquired easement.

9. The land in question on which the alleged obstructive construction is proposed has been acquired under the Land Acquisition Act. Section 16 of the Act gives the result of such acquisition. The land when so acquired vests absolutely in the Crown free from all encumbrances. The word 'encumbrances' here has been understood to include easements : Taylor v. Collector of Purnea ('87) 14 Cal. 423, Bombay Corporation v. Great Indian Peninsula Railway ('16) 3 A.I.R. 1916 P.C. 3 and Abdul Karim v. George High School : AIR1936All879 . The acquisition of a servant tenement may thus affect the dominant tenement injuriously and this injurious affection is to be taken into account in determining the amount of compensation to be awarded for the land acquired under Section 23(1) (fourthly). The owner of the dominant tenement is certainly 'the person interested' within the meaning of this section as defined by Section 3(b) of the Act. It is, therefore, difficult to see how the present petitioner can still claim any right of easement over this land. In the land acquisition proceeding, he was treated as a 'person interested' and was given notice of the acquisition. He appeared and claimed compensation for the injurious affection of his premises by the acquisition. His claim was rejected on a ground which amounted to saying that the acquisition did not affect his premises injuriously. It is contended on behalf of the petitioner that the Collector's order amounted to a reservation of the right of easement in his favour. In view of the order proposed by us in this case, it is not necessary for us to consider whether the Collector had any jurisdiction to make any such reservation and whether his order can be construed as making such a reservation.

10. As regards the claim of the petitioner it would suffice to say that independently of the easement right, the right to receive light across another's land is not a natural incident of property but can only be acquired as an easement either by grant or prescription. Unless and until such a right has been acquired in the manner of other easements, no amount or mode of obstruction is actionable. It is therefore difficult to see how the petitioner can contend that the proposed construction would amount to a nuisance to his premises and thus would supply a ground at least of a civil action against the opposite party apart from any question of any easement affecting the acquired premises. In any case, remembering that an order under Section 144, Criminal P.C., cannot remain in force for more than two months from the making thereof and that in the present case, though no final order under the section was made, the proposed construction has been kept stayed since 18th August 1941, we are not inclined to interfere further in this matter. In the result therefore we discharge this rule and vacate the order passed by us restraining the opposite party from proceeding with the construction while issuing this rule.

Mohamad Akram, J.

11. I agree.


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