D. Pathak, J.
1. This revision petition is directed against the judgment and order passed by the learned Magistrate, Judicial, Gauhati, dated 29-6-1974 in Misc. Case No. 121 of 1970.
2. The opposite party Sri Sarat Chandra Barua filed a petition before the Officer-in-Charge, Chandmari Police Out Post, Gauhati, with a copy enclosed to the Deputy Commissioner, Kamrup. On receipt of the petition the police registered a non- F. I. R. case under Section 147, Criminal P.C. and took up investigation. The Deputy Commissioner ordered for attachment of the land over which the first party claimed right of user, apprehending breach of peace. The police attached the disputed land and submitted report for drawing up a' proceeding under Section 147, Criminal P.C. (old). The learned Magistrate (E), drew up a proceeding and called upon the parties to put in their written statements etc. in support of their respective claims. Both parties filed their written statements. The first party filed some documents and the second party also filed certain affidavits. On consideration of the evidence on record, the learned Magistrate Judicial, to whose file the case was transferred for adjudication, found that the disputed land is a road which is used by the first party. Therefore, he passed the impugned order by which the second party, that is, the present petitioner was prohibited from interfering with the exercise of the right of user by the opposite party over the disputed land until and unless otherwise directed by a competent Civil Court. Against the said order passed by the learned Magistrate the present petition has been preferred.
3. Mr. B. K. Goswami, the learned Counsel appearing on behalf of the petitioner submits that when there is a finding recorded by the learned. Magistrate that the disputed land is a public path, which finding he cannot challenge, the proper procedure which should have been followed by the learned Magistrate was to draw up a proceeding under Section 133 Criminal P.C. The initiation of the proceeding under Section 147 Criminal V. C. is mis-conceived according to the learned Counsel. In order to appreciate the arguments advanced by the learned Counsel, it is better to notice Sections 133 and 147, Criminal P.C. Section 147 Criminal P.C. so far relevant for the purpose of deciding this petition read as follows:
Disputes concerning rights of use of immovable property etc.— (1) Whenever any District Magistrate, Sub-divisional Magistrate or. Magistrate of the first class is satisfied, from a police report or other information, that a dispute likely to cause a breach of the peace exists regarding any allleged right of user of any land or water as explained in Section 145, Sub-section (2) (whether such rights be claimed as an easement or otherwise), within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims, and shall thereafter inquire into the matter in the manner hereinafter provided,
(1-A) 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, as far as may be, be applicable in the case of such inquiry. (2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of 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 institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.
Section 133 reads as follows:
Conditional order for removal of nuisance.— (1) Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers on receiving a police report or other information and on taking such evidence (if any) as he thinks fit,— that any unlawful obstruction or nuisance should be removed from any wav, river or channel which is or may be lawfully used by the public, or from any public place, or
that the conduct of any trade or occupation,1 or the keeping of any Roods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or that the construction of any building, or the disposal or any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on, business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary, or that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public, or that any dangerous animal should be destroyed, confined or otherwise disposed at,
such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order,
to remove such obstruction or nuisance; or
to desist from carrying on, or to remove or regulate in such manner as may be directed; or such trade or occupation; or
to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure; or
to remove or support such tree; or to alter the disposal of such substance; or
to fence such tank, well or excavation, as the case may be; or
to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects so to do,
to appear before himself or some other Magistrate, of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation.— A 'public place' includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.
4. Mr. Goswami submits that when there is a finding that the disputed land is a public path, the only course which was open to the learned Magistrate was to draw up proceedings under Section 133 of the Code and a private individual could not invoke the jurisdiction of the Court under Section 147, Criminal P, C. so as to exercise right of way over the public path. In support of his submission the learned Counsel refers to the following decisions: Satya Sundar v. Sailendra Kinkar Pal reported in : AIR1954Cal560 and Bhubaneswari v. Kali-ram reported in AIR 1960 Assam 90 : 1960 Cri LJ 794. In the Calcutta case, an obstruction was placed by the opposite party in the thoroughfare for the use of the public. There (he learned Magistrate drew up a proceeding under Section 147, Criminal P, C The Court held that when there was obstruction on the public thoroughfare or public place, for the removal of the same, the proper course was to take resort to Section 133 and a proceeding under Section 147, Criminal P.C. was not competent.
5. In the Assam case, it was held.
The order which can be passed under Section 147, Criminal P.C. is one prohibiting interference with the exercise of the right claimed, whereas an order under Section 145(6) is in the nature of a declaration that the party is entitled to possession until evicted therefrom in due course of law....
In the Assam case the distinction between Sections 147 and 145 has been interpreted.
6. From the above decisions the principle that can be gathered is that when there is obstruction placed on the public path or in the public place, then the proper procedure to follow is under Section 133 of the Code. Section 133 is therefore of remedial nature, whereas Section 147 is preventive. An order under Section 147 can be made when there is a dispute likely to cause breach of peace in regard to alleged right of user of any land or water as explained in Section 145(2), Criminal P. C, Therefore, in terms of Section 147, an order can be passed by the learned Magistrate before any obstruction is placed by the opposite party. Under Section 133 a proceeding can be only resorted to when there is a question of removal of obstruction already there on a public place; whereas a proceeding under Section 147 can be drawn up when there is no obstruction placed, but there is apprehension of interference of the right of user of any land or water.
7. Mr. K. Sarma, the learned Counsel appearing on behalf of the opposite party submits that in cases where there is no obstruction placed on any land or water, there is no question of removal of any obstruction for which a Section 133 proceeding can be drawn up. In such a case the only proper proceeding is under Section 147 Criminal P.C. In support of his submission Mr. Sarma draws my attention to a decision of the Patna High Court Panchan v. Mohan Mogha reported in : AIR1950Pat315 , where a proceeding was initiated under Section 133, Criminal P. C, but after hearing the parties and perusing the cause, the learned Magistrate was satisfied that the real dispute between the parties was as to the right of user of certain public pathway in respect of which there was an apprehension of the breach of the peace and he ordered for drawing up of a proceeding under Section 147 Criminal P.C. and directed the parties to file their written statements. The High Court held that the order of the learned Magistrate there was perfectly within jurisdiction. In view of the above reasonings I do not find any force in the submission of the learned counsel for the petitioner.
8. the last submission of the learned counsel for the petitioner is that even assuming competent, the same is barred by virtue of the proviso to Sub-section (2) of Section 147 criminal P.C., because there is no evidence on which the learned Magistrate could have found that the opposite party exercised the right of user of the path within three months next before the institution of inquiry. The learned Magistrate gave a finding that the application for drawing up a proceeding under Section 147 was made on 24-4-1970 and the order for inquiry was made on 85-1970. The learned Magistrate found that even on 23-4-1970 the opposite party was exercising the right of user of the road and the enquiry having been ordered on 8-5-1970, the proceeding is not barred under the said proviso. In my opinion, as found from the facts, it cannot be said that the proceeding under Section 147, Criminal P.C. is barred under the said proviso. Therefore, the last submission of the learned Counsel also has no force.
9. The petition is accordingly dismissed and the rule is discharged.