W. Comer Petheram, C.J.
1. On the 9th of March 1894, Domi Lal, the complainant in this case, made a statement on affirmation, before the District Magistrate of Monghyr, in which he stated that the Baneli Raj people had closed a path or road by which jungle produce, wood, etc., were brought from the Sakaul and Gorega jungles to the railway and Singhia. That he had been sub-inspector of jungles for twelve or thirteen years, and had seen the road used each year, but this year it had been closed, as there were disputes between the Raj Baneli and Raj Durbangha. He also said that this year, when the road was being made, the Baneli people obstructed; that five persons, whose names he mentions, came with lathies, and said that they would not allow him to make the road; that they were ready to commit assault if necessary; and that when he had ascertained that, he came away. He added that the Sakaul and Gorega jungles entirely belong to Durbangha. Upon this the District Magistrate, on the same day, made an order, in which he recited that the matter had come to his notice before, as it had been mentioned to him by Mr. Ambler and Mr. Bell, and that as both parties were powerful he thought there was likely to be a collision if the matter were not settled. He then goes on to direct that a notice should be issued to Gobind Pershad, Tehsildar at Dharhara Cutcherry, and Bhattu Lal Patwari, calling on them to show cause why the carts of Durbangha should not be allowed to come out from the Sakaul and Gorega jungles towards the railway and Singhia through Khajuria Pazungunge, and that if they alleged that Durbangha carts had no right of way, they would adduce evidence on the point, and the petitioner would also adduce evidence; he also directed that the case should be made over to the Joint Magistrate. The next day the Joint Magistrate fixed the 26th instant, and directed that notice should issue according to the order, and that a copy of the complaint should go to the defendants. On the 23rd the District Magistrate transferred the case to the file of Moulvi Abdus Salam, a Deputy Magistrate of the first- class, and fixed the 9th of April for the enquiry. The enquiry was commenced on that day, the evidence was completed on the 14th, and on the 17th the Deputy Magistrate delivered judgment, by which he ordered under Section 147, Criminal Procedure Code, that the Durhangha Raj, represented by Domi Lal, do repair the tracks marked Al to Al, and that Durhangha and other carts should be allowed to pass along this cart track when made. This rule was afterwards obtained by Mr. Bonnerjee from a Division Bench of this Court, and it has now been argued before us by Mr. Bonnerjee for the Baneli Raj, and by Mr. Jackson for the Maharajah of Durbangha. Mr. Jackson has placed the evidence before us and has argued that the decision of the Deputy Magistrate is right on the merits, and that the provisions of the section have been sufficiently complied with, Mr. Bonnerjee has contended that the original order of the District Magistrate is bad, because it does not state the grounds upon which he was satisfied that a dispute likely to cause a breach of the peace existed', that even if it were not necessary for him to state such reasons under the provisions of Section 147, still he must be satisfied of the fact for some sufficient reason; and that the materials which was before him, and are now before us, were not such as he should have acted upon under the section : and, further, that if the materials for taking action were sufficient, the enquiry which was held was held without notice to the persons interested in the subject-matter of it, and whose rights are sought to be affected by its result; and that that being the case, there has been no enquiry at all within the meaning of the law, and that the order of the Deputy Magistrate must be set aside, as if rests on no legal enquiry or conclusion. Mr. Bonnerjee has also attacked the finding on the merits.
2. In my opinion the persons who were necessary parties to this enquiry were not before the Deputy Magistrate whilst it was in progress, not because they did not choose to attend it, but because they had no notice of it, and that I think renders the whole proceeding abortive, and we must set it, and the order which is based upon it, entirely aside. The order which a Magistrate is empowered to make under Section 147 is to be an order founded on an opinion to be formed by him that the right claimed, and disputed, does or does not exist, and that opinion must be the result of an enquiry which he has held for the purpose of ascertaining the facts, and at which the evidence has been recorded in the manner prescribed by Section 356 of the Code, and it is to be valid until the person who claims to do the thing, or the person who objects to its being done, obtains the decision of a Civil Court on the question. There can be no doubt that the enquiry contemplated is a judicial enquiry, and that the opinion to be formed must be a judicial one, formed upon evidence legally before the Magistrate, and it is not necessary to add that the evidence before him would not be legally before him if it had been taken behind the backs of the persons who claimed or denied the right in the sense that they- not only were not represented at the enquiry but had no notice of it. In the present case the persons who had notice of the enquiry were Gobind Pershad and Bhattu Lal, who were required by the notice which was served upon them to show cause why an order should not be made. These persons are said to be servants of the owners of the Baneli Raj, and I understand the Magistrate's view to be that they sufficiently represented the Raj, for service of such a notice upon them to be equivalent to service on the owners themselves, and that they sufficiently represented their masters at the enquiry itself. I cannot agree with such a view. There is no provision in the law which authorises it in any way, and it would, in my opinion, be dangerous to the last degree to allow inquiries of this kind, in which the rights of people to their property may be at all events prejudiced, to be held without the persons interested having actual notice of them, and if it were the case here that the only persona interested in the result of this enquiry were the owners of the two Raj estates, I should think the inquiry and the decision bad and invalid, because those persons were not properly brought before the Court; but in the present case this is by no means all. The evidence on this record shows that the right claimed is the right to make and maintain, during a great portion of the year, a cart track for a mile and a half across lands which are in the possession of a number of persons as ryots under the owners of the Baneli Raj, and that these persons, as well as their landlords, object to the land being used for this purpose, and deny that the alleged right exists; so that, even if the owners of the two estates had been properly before the tribunal, the persons in actual occupation of the land, and who are the persons whose property would/or at least might, be injured by the exercise of the right claimed, are ignored altogether. For these reasons I am of opinion that the inquisition and order founded upon it must he set, aside, the necessary parties not having been before the Court. This is sufficient to make the rule absolute, and, it is not necessary for me to express any opinion on the other points raised, and on the question whether the order by which a Magistrate directs an enquiry under Section 147 must state the grounds on which he is satisfied that a dispute likely to cause a breach of the peace exists, and on the merits of the dispute as to the right claimed I do not propose to say anything; but on the question whether the. deposition of Domi Lal, which was all that the District Magistrate had before him on the 9th of March, was material on which he could reasonably come to that conclusion, I have very grave doubts. Domi Lal does not say there was any danger of a fight; he only says there would have been one if he had not given way, but he says he did give way, and does not intimate that he has any intention of taking any further step to enforce the alleged right. I think that Magistrates ought not to embark on enquiries of this kind, in which it is certain that injustice may be done from defective procedure, unless they are satisfied that a real danger of the evil, for the prevention of which this procedure was devised, does in fact exist, and that they would be wise not to use this procedure in such a case as the present, when it must involve a long and complicated enquiry, and the presence of a great number of people, when such an obvious remedy as binding down the five persons who are said to have threatened Domi Lal and his labourers was ready to his hand.
3. The rule will be made absolute to set aside all the proceedings.
4. I agree.