R.S. Bindra, J.C.
1. This revision petition by Digendra Kumar Deb arises out of an application made by Tarant Charan Dey. under Section 147 of the Criminal P. C., praying that Digendra Kumar Deb be directed to remove obstruction in the shape of a fencing set up by him over a public path-way which he (Tarini Charan Dey) had been using for egress from and ingress to his homestead situate on the west of that pathway. The preliminary order was passed on 8th August 1960. After perusing the written statements filed by the parties and going through the evidence led by them, Shri S. C, Das, Magistrate first Class, Kailashahar, passed the final order on 23rd April 1962, holding that public road runs over the enclosed part of the land, that Tarini Charan Dey had been exercising his right of way over that public road within three months next preceding the preliminary order, and that the action of Digendra Kumar Deb in obstructing the pathway was likely to result in breach of peace. The Magistrate, therefore, directed the removal of the fencing set up by Digendra Kumar Deb and prohibited him from causing any obstruction in exercise of the right of pathway by Tarini Charan Dey. A period of 15 days was given to Digendra Kumar Deb for removal of the fencing and he was also called upon to pay Rs. 10/- by way of costs to Tarini Charan Dey.
2. Having felt aggrieved with the order of the Magistrate, Digendra Kumar Deb filed a revision petition in the Court of the Sessions Judge. That petition came up for hearing before Shri S. B. Laskar, the Additional Sessions Judge, who, by his order dated 7-6-1965, dismissed the same on confirming all the findings reached by the Magistrate, The present revision petition under Sections 439 and 561A of the Code is directed against the order of Shri S. B. Laskar.
3. Shri N. L. Choudhury, appearing for the petitioner, canvassed three points to support the contention that the order made by the Magistrate and confirmed by the Sessions Judge is bad in law and so has to be quashed. Firstly, it was urged that the proper course for the Magistrate to follow in the circumstances of the case was to proceed under Section 133 rather under Section 147 of the Code. The next point taken was that while exercising power under Section 147 the Magistrate had no jurisdiction to direct removal of the obstruction set up by Digendra Kumar Deb over the disputed piece of land. Lastly, it was contended that an order for costs is wholly unjustified in respect of proceedings under
In fairness to Shri Choudhury it must be stated that he was also critical of the findings, reached by the two Courts below, that a public road runs through the land over which Digendra Kumar Deb is alleged to have set up the fencing and that Tarini Charan Dey had been using that pathway for going to and coming out of his homestead. This criticism of Shri Choudhury is without merit. It is proved from the statements of the witnesses examined by Digendra Kumar Deb himself that a public road runs through the area fenced by Digendra Kumar Deb. (His Honour then discussed the evidence and proceeded.) Hence, I overrule the objection of Shri Choudhury that the Magistrate and the Sessions Judge had gone wrong in holding that a public road runs over the land in dispute and that Tarini Charan Dey had been using that road for going to and coming out of his house on its west. Moreover, the concurrent findings of the Courts below to that effect, founded as they are on dependable evidence, cannot be assailed in this revision petition,
4. The contention of Shri Choudhury that the Magistrate would have been well advised to take recourse to the provisions of Section 133 in preference to those of Section 147 is equally untenable. It is correct that provisions of the two sections cover common field to the extent that they embrace cases of nuisance over public paths and roads. However, Section 147, in addition, also embraces cases of the nature of private nuisance for it includes, inter alia, a case involving infringement of the right of easement which obviously can be claimed by an individual. Further, the most salient distinction between the two sections is that to bring the case under Section 147 it has to be established that the dispute between the parties is likely to cause a breach of the peace, while this is obviously not an essential ingredient of Section 133. Since in the instant case there was a distinct allegation by Tarini Charan Dey that the obstruction set up by Digendra Kumar Deb was likely to cause a breach of peace between the two parties, and since the Courts below have held that there was a likelihood of breach of peace between them, the case clearly falls within the ambit of Section 147 and is not covered be the provisions of Section 133.
5. Shri Choudhury also contended, though in a luke-warm manner, that the preliminary order passed by the Magistrate on 8-8-1960, being not in the form No. XXIV, Schedule V, Criminal Procedure Code, the entire proceedings stand vitiated, Form No. XXIV, it will be noticed, refers to the final and not the preliminary order passed under Section 147 and as such the point raised by Shri Choudhury is without any substance. Even if the preliminary order passed by the Magistrate was defective in some way, it is not open to Digendra Kumar Deb to cavil at it, while coming in revision against the final order passed under Section 147. If he had any genuine grievance arising out of the preliminary order, he should have immediately filed a revision petition against that order and not waited until the final order was passed. It was held in the case of Qamaruddin v. Mushtaq Ahmad AIR 1949 All 616, that if in compliance with an irregular preliminary order the parties put in appearance before the Magistrate without challenging the same in revision, they cannot assail that order in a revision, filed against the final order, and this is specially so when there is nothing to establish that the party had been prejudiced by the alleged irregularity in the preliminary order. Shri Choudhury could not mention any irregularity respecting the preliminary order excepting the one noted above, and which has been found to be without any merit, nor was he able to satisfy this Court that any prejudice had been suffered by his client. Therefore, the objection raised by him must be negatived.
6. This brings us to the consideration of the point whether while passing a final order under Section 147 (2) the Magistrate has the authority to direct the removal of the obstruction set up by the opposite party over the land in dispute, apart from making an order prohibiting any interference with the exercise of right over that land by the aggrieved party. On the authority of : AIR1965Pat17 Ram Ishwar Singh v. Rambachan Singh, it was contended by Shri Choudhury that the Magistrate can only pass an order prohibiting an interference and not one for actual removal of the obstruction. Shri H. Dutta, representing the respondent herein, cited a large number of authorities of the various High Courts holding that in a proper case the Magistrate can order under Sub-section (2) of Section 147 the removal of the obstruction standing in the way of the exercise of the right proved to exist in favour of the aggrieved party.
Shri Choudhury conceded that there is sharp conflict of judicial opinion in India over the question whether the Magistrate is possessed of the power to direct removal of the obstruction. A perusal of the authorities cited at the bar by the parties counsel indicates that the High Courts of Lahore, Madras, Allahabad, Assam and Mysore, as also the Judicial Commissioner's Court at Manipur, are of the view that such an order is within the contemplation of Sub-section (2) of Section 147, while the High Courts of Calcutta, ;Bombay, Patna and Nagpur have expressed the contrary opinion.
For the last 20 years or so the Judicial Commissioners' Courts for Manipur and Tripura have been presided over by the same officer. Therefore, the view taken by the Judicial Commissioner of Manipur has to be respected by this Court unless for reasons stated it wants to depart from that view. In the case of W. Gulap Singh v. Moirangthem Radha Deyi AIR 1964 Manipur 24, Tirumalpad, J.C., held that after perusal of the various authorities cited before him, he agreed with the view expressed by the Assam, Madras and Allahabad High Courts that a criminal Court acting under Section 147 has the power to order removal of obstruction while declaring the right of way in favour of a party. The conclusion reached by me on scrutiny of the relevant authorities is also identical. In my opinion, that view is not only the practical view to take but it is also in accord with the phraseology of Sub-section (2) of Section 147.
That sub-section provides,
If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.
In the cases where interference has taken the shape of physical obstruction, the prohibition of such interference necessarily implies a direction for removal of that obstruction. Any other view would make the provisions of Section 147 a dead letter in those cases where interference has taken the shape of physical obstruction. The aggrieved party may have scored success after fighting a protracted and expensive litigation and yet that success may not be of any practical value to him if the physical obstruction cannot be removed pursuant to an order made under Sub-section (2) of Section 147. The Legislature could not have envisaged such an eventuality with equanimity for we know that the Legislature always endeavours to act in a practical manner.
It may be that in certain cases the Legislature fails to clothe its intention in very precise and scientific phraseology. However, it is the primary function of the Courts to ascertain the exact intention of the Legislature, of course, from the words used by it, and then to give effect to that intention, unless the words of the statute stand in the way either explicitly or by necessary implication. I feel that nothing said in sub-s, (2) of Section 147 inter, diets the Magistrate from directing removal of physical obstruction set up by the party complained against. Such a direction would tantamount to 'prohibiting any interference' with the exercise of the right claimed by the aggrieved party, It would also lend force and vitality to the legislative intendment, besides imparting practical shape to it. Any other interpretation of Section 147 (2) would make the provision otiose in cases of present variety though such cases without doubt fall within the ambit of Section 147.
7. In the case of Angappa v. Krishnaswami : AIR1959Mad28 , it was held, while interpreting Sub-section (2) of Section 147, that a negative order can include a positive direction to make the prohibition effective and useful. If an order is to be effective, even though it be of a prohibitive nature, whatever is incidental to the prohibition should also be available to the Magistrate to pass in the circumstances of each case. It was further observed that any interference would in very fit cases include the removal of any obstruction that has already been placed in the exercise of the right by the aggrieved party and that it need not have reference merely to any interference that might occur in the future, and which might not possibly occur at all in view of the order issued by the Magistrate.
A Full Bench of the Allahabad High Court held in the case of Abdul Wahab v. Mohd. Hamid Ullah : AIR1951All238 (FB), that a power to effectuate a certain object which the Legislature has in view must be construed as implying the existence of all such ancillary powers as are necessary for carrying out the intention of the Legislature and effectuating the object in view. It was observed further that in order to make a prohibitory order effective, the Magistrate has power to pass an order under Sub-section, (2) of Section 147 for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. I respectfully agree with the observations made by the Madras and Allahabad High Courts if only because they give effective and practical shape to the order contemplated by Sub-section (2) of Section 147.
8. The last point urged by Shri Choudhury was that the Magistrate had no authority to impose costs of Rs. 10/- on Digendra Kumar Deb. This point is equally devoid of merit. Sub-section (3) of Section 148 of the Code prescribes that when any costs have been incurred by any party to a proceeding under Chap. 11, the Magistrate passing a decision under sections 145, 146 or 147 may direct by whom such costs shall be paid. Therefore, the Magistrate was well within his rights in imposing the costs on Digendra Kumar Deb.
9. As a result, the revision petition fails and so it is hereby rejected.