JUDGMENT
Macpherson, J.
1. This application in revision is preferred against the following order of the District Magistrate of Darbhanga passed on December 21, 1933, under the provisions of Section 144 (4) of the Code of Criminal, Procedure in respect of an order of the previous day made by the Sub-Divisional Magistrate of Samastipur:
The order under Section 144 against Rai Sahib Sunder Singh is rescinded under Section 144 (4). The Sub-Divisional Officer will take whatever action appears necessary to prevent Manu Khan or other persons interfering with the collection of tolls by Rai Sahib Sundar Singh. Any tolls collected by the Police will be handed over to the Rai Sahib forthwith.
2. It is expedient to set out matters chronologically.
3. The Magardahi (pontoon) Ghat near Samastipur and its subsidiary Ghats are under the management of the District Board of Darbhanga. For a number of years prior to 1928, the lessees were Mahabir Singh and his brother Rai Sahib Sundar Singh aforesaid. Thereafter Manu (Singh) Khan took settlement from the District Board and in particular was the lessee for a year from April, 1933, on a jama of Rs. 29,025. In paragraph 9 of his lease it is set out that if he makes default in the payment of the rent for the ferry, it should be lawful for the Chairman to remove him from the charge of the ferry and settle the same with some other person or hold it khas and after such removal he should not be entitled to any part of the proceeds of the ferry or to levy any toll, therefor. Apparently he fell into arrears and in September petitioned for remission of Rs. 10,025 of the rent and the Board on October 10, resolved that the Government be moved to fix the jama of the ghat at Rs. 15,000 and to grant remission of the balance, but subsequently on November 30, decided to re-settle the ferry with some other person if the lessee failed to pay up the arrears within ten days of the date of notice and notice was served on him on December 5. The lessee made a representation of the Local Self-Government Department which apparently called for report. On December 15, the Vice-Chairman of the District Board, acting under para. 9 of the lease, settled the ghats with Rai Sahib Sunder Singh at a rent proportionate to the remaining period of the lease and gave him a parwana to that effect and an acknowledgment of the payment of the earnest money which was one-fourth of the rent due. Thereupon the new lessee took possession from the beginning of December 16, 1933, and did so without incident as reported by the peon of the District Board who had been deputed to give him possession. Apparently Manu Khan got busy at Patna and the following telegram from Patna was received by the District Magistrate of Darbhanga on the late afternoon of the 16th.
Local Self-Government have already called for report through Commissioner on representation submitted by Manu Khan lessee of Magardani ghat. Information since received that ghat has been resettled by District Board and breach of peace is apprehended. Please take necessary action to prevent disturbance and request District Board refrain from further settlement proceedings until Government have disposed of lessee’s representation, Meanwhile please expedite report
4. A copy of which was forwarded from the District Magistrate’s Office to the Sub-Divisional Officer, Samastipur “for information and necessary action” with the further endorsement.
The Superintendent of Police has been requested to see that no breach of the peace occurs”, and apparently reached its destination late on the lath.
5. Meantime at 4 a. m. on the 17th there was danger of a breach of the peace at Magardahi Ghat because lathials and wrestlers had appeared on behalf of both parties and to prevent a breach of the peace, the Police took over the collection, of the toll and sent a report to the Magistrate’ at Samastipur. The Sub-Divisional Officer being absent, Sub-Deputy Magistrate passed an order under Section 144 which, of course, was void as he was a Magistrate of the second class. On the 18th the Sub-Divisional Magistrate issued an order under Section 144 on both parties. He mentioned that he was awaiting an order from Government which he expected to receive shortly. He heard the parties on the 19th and on the 20th passed orders rejecting the application of Rai Sahib Sunder Singh to vacate the order against him and directing rather curiously that
until the further orders of the Local Government are communicated the order against Manu Khan be vacated.
6. In the course of his order he mentioned that he had received the copy of the telegram of the 16th reproduced above and that be had no report of the District Board on that matter nor any information of the action taken by it to fulfil the request of the District Magistrate to refrain from further settlement proceedings until Government had disposed of the lessee’s representation, nor of anything to show that Manu Khan had received notice to quit. Actually his order was based on the view that in the absence of a notice to quit it was not probable that Manu Khan’s men gave up possession peacefully and on the desire of the Local Self-Government that the status quo be maintained temporarily, Hardly had he passed this order when he received a letter of 20th December, apparently brought by hand, from the District Magistrate enclosing a letter of December 18, from the Vice-Chairman of the District Board, in which the District Magistrate requested him to report what action he had taken to ensure that Rai Sahib Sunder Singh’s occupation of the ghat should not be interferred with by the ex-lessee Manu Khan. The Vice-Chairman’s letter shows that a notice had been issued to Manu Khan directing him to make over charge of the ghat, and though he had refused to receive the order, he had handed over charge of the ghat to Rai Sahib Sundar Singh as reported by the peon though whom the order had been sent.
7. The Sub-Divisional Magistrate stayed his order until the evening of the 21st to allow Rai Sahib Sunder Singh to apply to the District Magistrate under Sub-section (4) to rescind the order against him. The District Magistrate heard the application on the 21st in presence of both parties. He pointed out that (as also appears above) the Sub-Divisional Magistrate was not only not in possession of the facts but had also misconstrued the telegram of the Local Self-Government Department which is in no way an authority to the District Magistrate to do what indeed is beyond his power, namely to reverse the settlement made with Rai Sahib Sunder Singh, and accordingly he passed the order now impugned. He also refused the further request of Manu Khan that he should order the Police to collect the tolls.
8. The Police made over the ghat to the present opposite party on the afternoon of the 21st to the knowledge of Manu Khan. On the 22nd, this Court was move Ion behalf of the latter and the present rule obtained. Apparently the fact that restoration of the ghat had been made to the present opposite party was not disclosed since this Court simultaneously directed that the Police should continue to collect the tolls and to hold the ferries until further order. This placed the Sub-Divisional Magistrate in a difficulty which he has it is stated at the Bar, solved by getting the Police to collect on behalf of Rai Sahib Sunder Singh.
9. In showing cause, the District Magistrate draws attention to the fact that the Sub-Divisional Magistrate had not before him the evidence requisite to enable him to come to a decision and in particular the information which was before the District Magistrate that notice to vacate had actually been given by the District Board to Manu Khan and that as the District Board peon reported the latter (meaning his servants) had actually made over charge to the new lessee. He also points? out that not only was the Sub-Divisional Magistrate unduly influenced by the telegram which in no way altered the facts on which the decision had to be based but that actually the telegram had been subsequently countermanded by Government.
10. The first point which, Mr. Manuk makes is that the District Magistrate was disqualified from taking action under Sub-section (4) of Section 144 because under Section 7 of the Bengal Ferries Act the control of the ferry is vested in him under the supervision of the Commissioner. But in point of fact the District Magistrate is not interested in the matter of settlement of ferries by the District Board. Such settlements are sanctioned by the Divisional Commissioner and appeals from action of the District Board do not lie to the District Magistrate. The District Magistrate had in the present instance no interest. But even if he had, that would not in my judgment have disqualified him from acting under sub-section (4). It is within the competence of the District Magistrate to rescind any order under Section 144 of a Sub-Divisional Magistrate. He ought certainly to do so if the order is wrong as it evidently was on the facts in this instance and he may also always do so when he finds that the order is not required for immediate prevention of a breach of the peace. Beyond all questions the High Court will never re-impose an order under Section 144 which the District Magistrate who is responsible for the peace of his District, does not wish and in his discretion has rescinded. In the present instance, moreover, the petitioner was heard, the District Magistrate had far fuller materials and a better view of the whole situation than the Sub-Divisional Magistrate who suffered from lack of materials and the order itself appears to be sound on the merits.
11. Mr. Manuk then urges in reference to the second part of the order that it is not intended that disputes of a quasi civil nature should be decided under Section 144. But the contention is irrelevant. His plea that his client was dispossessed in pursuance of the order under sub Section 4 is not sound. From what has been said above, it is manifest that he was actually dispossessed not by the Magistrate but by the District Board in virtue of the provision of his lease which has been quoted. The District Magistrate with his fuller knowledge also saw that he had not been dispossessed by force: Manu Khan’s servants had given up possession when the District Board peon had come to put in possession the opposite party who brought his parwana. As it has been found that Sundar Singh obtained and was in peaceful possession on the 16th, it is proper that the authorities should maintain him in the same against violent interference by the previous lessee or other.
12. The third part of the order is purely consequential and is proper. It will now cover all the collections by the Police up to the time when they re-deliver charge to the opposite party.
13. The application is without merits and the Rule is discharged.
Dhavle, J.
15. I agree.