The main legal point established in the judgment is the mandatory requirement for the Executive Magistrate to record satisfaction of the existence of a dispute likely to cause a breach of peace and the exercise of the right of use within a specified period before passing an order under Section 147 of the Code.

Chakradhari Sharan Singh, J.(Oral)

Heard learned counsel for the parties.

2. Sub Divisional Magistrate, Supaul in purported exercise of power under Section 147 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by the impugned order dated 29.07.2011 passed in Miscellaneous Case No. 505 of 2008 has directed the petitioners to remove obstruction from 1 decimal of land of Old Khesara No. 3320, New Khesara No. 1520 under Mouza-Baruari, Thana No. 204, of Khata No. 706 (699 New).

3. The short point, which has been taken on behalf of the petitioners to assail the impugned order is that existence of apprehension of breach of peace is condition precedent for exercising power under Section 147 of the Code. It has been additionally submitted that it had never been the case of the contesting Opposite party No.2 that the right of use of land in question was being exercised within three months next before the initiation of the proceeding or receipt under Sub-section (1) of Section 147 of the information leading to institution of the enquiry. It has been contended that on the contrary the records suggest that the Opposite party No.2 had ceased exercising the said right of use of land much before three months preceding the receipt of information leading to institution of the enquiry. To bolster this contention, it has been argued that there is no finding recorded by the learned Magistrate to the effect that the said right was being exercised within three months next before the receipt of information while exercising his power under Section 147 of the Code, which is also one of the essential conditions for exercise of such power.

4. Learned Senior counsel appearing on behalf of Opposite Party No.2 has submitted that though there is no reference in the impugned order to existence of apprehension of breach of peace but it can be easily inferred and presumed that the dispute of such nature might have led to breach of peace and, therefore, the Magistrate rightly exercised his power under Section 147 of the Code. He has also submitted that mere absence of reference of apprehension of breach of peace in the order will not render the impugned order illegal.

5. Section 147 of the Code reads thus :-

"147. Dispute concerning right of use of land or water.

(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims.

Explanation.- The expression" land or water" has the meaning given to it in sub-section (2) of section 145.

(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such, evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry.

(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:

Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on pa