P L D 1964 Dacca 734 (PLP)

Mr. A. S. Khan, Sessions Judge of Jessore, has made this Reference under section 438 of the Code of Criminal Procedure recommending that the order dated 7‑3‑63, passed by Mr. H. Uddin, Magistrate, First Class, Narail, directing the Officer‑in- Charge of the Lohagara Police Station to remove the fixed engine (Patanjal or Bundh) erected by the accused petitioners and others for catching fish be set aside. The relevant facts are as follows:‑

The Secretary of a certain Fishermen Co‑operative Society made a written complaint alleging that the accused petitioners and others had set up a fixed engine (Patanjal) across the river Madhumati at a certain place and thereby prevented hilsha fish from entering into the Society's fishery which adversely, affected the large number of fishermen represented by the said Society. Upon receipt of that complaint, the learned Sub‑Divisional Magistrate appears to have summoned the two accused petitioners together with two others under section 3, (should be section 5, for contravention of rules framed under section 3) of East Bengal Protection and Conserva tion of Fish Act (XVIII of 1950). At the same time he also directed the Officer‑in‑Charge of the Lohagara Police Station to remove the said fixed engine, that is, the Bundh. That was on 16‑2‑

63. Two days later, that is, on 18‑2‑63, one of the accused petitioners appears to have moved the learned Sub -Divisional Magistrate against the aforesaid direction for removal of the Bundh stating inter alia that the erection of the Bundh had cost his party a sum of Rs. 6,000 or so and that its summary removal without any proper enquiry would cause them irreparable loss. The learned Sub‑Divisional Magistrate thereupon stayed order for removal of the Bundh. Later the Officer‑in‑charge of the police station was directed to report if the accused in erecting the disputed Bundh observed the formalities enumerated in the Government Circular. The Officer‑in‑charge accordingly submitted his report which appears to have been put up before Mr. H. Uddin, Magistrate, First Class on 7‑3‑63 on that date the accused party also filed a Nara/i petition against the said police report and prayed for local enquiry by the learned Magistrate personally. The leached Magistrate, however, does not appear to have taken any action on the Naraji petition thus filed by the accused party, as may be seen from the following order passed by him on 7‑3‑63. "Both the accused on bail present and as before. Seen the true copy of the circular filed by the accused and the police report of Lohagara P. S. and Naraji filed by the accused. The report of the O. C., Lohagara P. S. shows that the accused persons have not followed the circular No. 2‑R‑3/62, dated 2‑1‑63 in erecting the fixed engines. Heard both parties, O. C., Lohagara P. S. to remove the bundle at once. Issue W/A against the absentee accused with bail of Rs. 500 each. To 30‑3‑

63. Accused present as before." Against this the accused petitioners mooed the learned Sessions Judge who in his turn had made this Reference with his recommendation, already mentioned above. The ground upon which the learned Sessions Judge has made his recommendation will appear from the following extract taken from his Reference‑

"Before ordering the petitioners to remove the Bundh from the river Madhumati the Magistrate should have ascertained whether the Bundle which the petitioners constructed fell within the territorial jurisdiction of the District of Faridpur or within the territorial jurisdiction of the District of Jessore. But the Magistrate before passing the order complained against did not ascertain this important fact." "Prima facie the petitioners are lessees of the Soaribag fishery in river Madhumati which is within the territorial jurisdiction of the District of Faridpur. So, the Magistrate of Narail, which is within the District of Jessore, had no jurisdiction to pass any order for removal of the Bundh (fixation of jals for catching fish) fixed by the petitioners." It may be pointed out at the very outset that no objection for alleged lack of territorial jurisdiction appears to have been taken before the Court of first instance, that is, before the learned Sub‑Divisional Magistrate. No specific ground to this effect appears to have been taken even in the revisional application filed before the learned Sessions Judge. Subsequently, however, the accused petitioners appear to have filed a petition alleging that the disputed Bundh lay beyond the territorial jurisdiction of the learned Sub‑Divisional Magistrate of Narail. No copy of this petition was forwarded to the learned. Magistrate concerned nor any explanation from him called for in this behalf. In these circumstances, the learned Sessions Judge cannot be said to have acted quite properly in entertaining the said ground and making the present Reference on the basis thereof. In any case he ought to have given the learned Magis trate concerned an opportunity to support his action by calling for a report from him before entertaining this ground or making the present Reference. As is already clear from the foregoing statement of facts, the learned Sub‑Divisional Magistrate assumed jurisdiction and issued the processes against the accused petitioners. In this view of the matter, he must be presumed to have acted correctly, that is, to have had the jurisdiction assumed by him unless and until, of course, the contrary is established. The said presumption receives further confirmation from the fact that pursuant to the direction given by the learned Magistrate, the Officer‑in‑charge of the local police station apparently visited the spot and thereafter submitted a report. Had the site of the Bundh been not within the limits of his police station, that is, within the limits of the Sub‑Division over which the learned Sub‑Divisional Magistrate as well as the learned Magistrate who subsequently dealt with the matter indis putably have jurisdiction, he, that is, the Officer‑in‑charge, instead of holding the enquiry and making the report, as he did would have pointed out to the Court concerned that the subject matter of the dispute was outside his jurisdiction as well as the jurisdic tion of the learned Magistrate concerned. In this connection it may also be observed that the river Madhumati, across which the Bundh in question has been erected, appears to form the boundary of the districts of Jessore on the one side and Faridpur on the other at the relevant place. Naturally, therefore, each of the two districts extends up to the mid‑point of the river which is indisputably a public navigable river and that appears to be shown by the G. S. map as well. Whatever that may be the point as has already been made clear above, was not taken before the Court of first instance and no report too has been obtained from that Court. It is therefore, not possible to make any decision thereon though the accused petitioners if they feel aggrieved, will be at liberty to raise the same hereafter before that Court. For the reasons stated above, I cannot see my way to accept the Reference made by the learned Sessions Judge on the ground stated by him in his letter. Nevertheless I cannot see my way to uphold the disputed order for other reasons, as shall be clear presently. As has already been stated above, the order complained of has been passed under the provisions of the relevant Act (Act XVII of 1950). This Act enacted for the purpose of providing for the protection and conservation of fishes empowers the pro vincial Government under section 3 to make, and by notification apply except in private water, rules which may inter alia prohibit or regulate the erection and use of fixed engines and or the construction, temporary or permanent, of weirs, dams, bunds, embankments and other structures. In order to make this rule making power fully effective to the purposes in view it has been further laid down that in making rules the Provincial Government may provide for the seizure, removal and forfeiture of any fixed engine or any other contrivance erected or used for fishing in contravention of the rules as well as for the forfeiture of any fishes taken by means of any such fixed engine or other con trivance. In addition to this breach of any rule made under section 3, has also been made punishable under section

5. It appears, and may be profitably borne in mind, that the provision as to seizure etc., referred to above, and the penal provision embodied in section 5 are not inter‑dependent or inter‑connected so that it is open to the competent functionary to proceed under both or either in the exercise of his discretion according to the circumstances. Now it appears from the Notification No, 2501 Fish dated the 24th March 1955, a copy of which is on record, that by rules made in exercise of the rule‑making powers, referred to above, Government prohibited the erection and use of fixed engines, i.e. any kind of net fixed to the earth by means of wooden, bamboo or iron structure or kathas amongst others in the water area, to which this case relates, and also authorised seizure, removal and forfeiture of any such engine erected or used in contravention of the above prohibition. This appears to have been relaxed for a specified period, within which the impugned act in the instant proceeding falls, vide letter No. 2E‑3/62 Fish, dated the 2nd January 1963, which allowed con struction of bunds "provided that in the case of fixed engine like Bund jals or Gora jals they are placed in big rivers in such a way that jals from bank do not meet completely in the middle so as to allow sufficient gap in the middle for passage of migratory brood fish and boats and the mesh of the nets is not also less than 3" (three inches) from knot to knot". Thus the case against the petitioners in relation to the proceeding now before me really boils down to an accusation of infraction of this circular. In this behalf the only material on record is the enquiry report submitted by the Officer‑in‑charge, Lohajung P. S. The relevant portion of that report is as follows: "The hole of the nets used in the main engine is more than 3' and less than 3" in places." It may be recalled that the petitioners challenged this by filing a Naraji petition and prayed for inspections by the learned Magistrate personally. A dispute thus arose as to whether there was in fact an infringement of the relevant circular i.e. whether the said police report was accurate and therefore such as might be acted upon. To this the learned Magistrate does not appear to have applied his judicial mind as he should have and his order does not indicate any reason as to why he‑ accepted the said report in spite of the Naraji petition, or for the matter of that whether he considered the Naraji petition at all or actually rejected it. The procedure adopted by him was certainly summary, even if it were not be characterised as arbitrary, and can hardly be supported or justified particularly in view of the fact that the structure he was ordering to be removed must have cost the party quite a heavy sum; according to them, as much as Rs. 6,000 and the loss caused to them on that Court (sic) together with the recurring loss accruing from day to day, if the order were executed would have been really irreparable in case it later transpired, their trial under section 5 is still pending that there was no contravention of the rule as relaxed. In my opinion, before making his order the learned Magistrate ought to have applied his mind judicially to the aforesaid dispute and decided the same after giving the parties proper opportunity to produce whatever evidence they might like to in as sailing as well as supporting the police report, in case it were for any reason not possible for him to hold a local inspection personally, which obviously, would have been the best. Thus the learned Magistrate cannot be said to have acted in a judicial or proper manner and in that view of the matter I find myself unable to uphold his order. I therefore accept the Reference, though on a ground differ ent from that on which the learned Sessions Judge has made the same, set aside the impugned order and send the case back for being proceeded with in accordance with the law and in the light of the observations made above. Pending the decision of the dispute in question, the order of stay passed by the learned Sub‑Divisional Magistrate shall continue in force. S. Q. Reference accepted on different ground.