1. In this case a Rule was issued upon the District Magistrate of the 24-Parganas and the opposite party named in the petition one Gostha Behari Kabashi to show cause why the order complained of should not be set aside on the grounds that it was illegal and made without jurisdiction and that there was no sufficient evidence of emergency before the learned Magistrate. Gostha Behari is a resident of village Jadurati in the district of 24-Parganas and a member of the District Board Dispensary Managing Committee. The villagers raised funds to build a dispensary and steps were being taken to acquire a suitable site by means of the Land Acquisition Act. Among other sites the land in possession of the second party was selected. Subsequently the petitioner second party began to excavate a tank on his land. Thereupon Gostha Behari petitioned to the Magistrate stating these facts and saying that unless the petitioners second party were restrained from excavating a tank on the site, there was every likelihood of a disturbance of public tranquillity. Thereupon, the Magistrate made an ex parte order on 29th April Under Section 144(2), Criminal PC. Under this section the Magistrate may proceed only when immediate prevention or speedy remedy is desirable and he must be satisfied, among other things, that there is danger to human life or a disturbance of public tranquillity or a riot or an affray. The only evidence before the Magistrate was that of Gostha. Subsequently on 4th May, the Magistrate received a report from the police stating that the petitioner second party did not wish to part with his land and that the villagers did not wish to raise any ill-feeling by compelling him to do so, because there were other suitable sites but that Gostha Behari with his men was determined to obtain the petitioner second party's land for the purpose of the dispensary. On 1st May the petitioner second party had appeared before the Magistrate to show cause, and after hearing 'him the Magistrate adjourned the matter until the 17th.
2. The petitioner second party complains of this-and we think rightly because in a matter of this kind it is obvious that it, ought to be disposed of expeditiously. For this reason the petitioner second party came direct to this Court Under Section 439, Criminal PC. On behalf of the first party Gostha Behari, who was the petitioner before the Magistrate, it is argued by his learned advocate that the petitioner second party out to have proceeded in the first place Under Section 435, Criminal PC, and applied to the Sesions Judge who would have reported to the High Court and he has referred us to the case of Rash Behari v. Phani Bhusan AIR 1921 Cal 76 in which the learned Judges said that the practice of this Court is not to entertain an application in revision against an order made by a, Magistrate in a proceeding Under Section 133, Criminal PC, unless the party aggrieved has first moved the Sessions Judge Under Section 435. But that decision refers to orders made Under Section 133, and would not apply to such circumstances as exist in this case.
3. The proper procedure Under Section 144 would have been to have applied Under Sub-section (4) to the District Magistrate who has power to set aside the prohibitory order. The petitioner second party however contends that in view of the Magistrate's order postponing the hearing for over 15 days, he was justified in coming direct to this Court. We think, in the circumstances, that this contention is reasonable. On the merits, it appears that no notice has yet been issued under the Land Acquisition Act, nor have any steps been taken which are requisite before an order to acquire the land can be made. It seems therefore premature to urge these proceedings before the Magistrate as a reason to induce him to make the order. Up to the present, the land belongs to and is in the possession of the petitioner second party, and so far as we know his possession may not be disturbed. He has therefore every right to excavate a tank on his own land. The police report seems to show that the only trouble is caused by the first party who is determined, if possible, to get his own way about the selection of a site for the dispensary. On the whole and taking into consideration all the circumstances, we do not think it is a case in which a prohibitory order ought to have been made. The rule accordingly is made absolute and the order of the learned Magistrate set aside.