G. Balagangadharan Nair, J.
1. The petitioner in the Original petition is the Parathodu Panchayat. There is a canal by name Padapady canal that flows through the Parathodu Panchayat and the adjacent downstream Kanjirappally Panchayat. The 1st respondent is the Kanjirappally Panchayat and the 2nd respondent is its President. One Abraham who is the 6th respondent constructed a stone bund across the canal inside the Parathodu Panchayat with the Panchayat's permission and on condition that the Panchayat could demolish it whenever necessary, The object of the bund was to dam the water for irrigating the lands of the 6th respondent and possibly of others. Certain persons of the Kanjirappally Panchayat moved that Panchayat obviously complaining against the construction of the bund on the ground that it would obstruct or stop the flow of water into the Panchayat. The Kanjirappally Panchayat thereupon passed a resolution on 31-5-1983 on the matter. The 2nd respondent filed a petition before the 4th respondent, the Sub-Divisional Magistrate, Kottayam complaining that the bund was obstructing the flow of water and affecting the cultivation downstream. It appears that the 6th respondant's son one K.I. Varkey filed a petition before the District Collector, Kottayam explaining the circumstances in which the bund was constructed. On 4-6-1983 the 4th respondent passed an order Ext. P-l under Section 113(1), Crl. Procedure Code, that the construction of the bund was causing the stoppage of the flow of water and was detrimental to the interests of the Kanjirappally public who were depending upon the canal water for their drinking and other purposes. After observing that it had become necessary to make immediate arrangements to remove the obstruction the order directed the 6th respondent to remove the bund within 3 days of receipt of the order and report compliance and that in default it would be forcibly removed at his cost. The petitioner seeks to quash Ext. P-l.
2. The 6th respondent thereupon filed an application Ext. R-3(a) dated 6-6-1983 requesting a review of the order and its modification so that instead of demolishing the bund, provision might be made to let out a portion of the water to the Kanjirappally Panchayat or to conserve the water without affecting the requirements of the Parathodu panchayat. The 4th respondent however dismissed the application, by the order Ext. p-2 dater 8-6-1981. The order also directed the removal of the obstruction before 10-6-1983 with a default clause as in Ext, P-l. In the course of the order the 4th respondent observed that there was no legal provision to allow the continuance of the bund, whatever be its height across the canal detrimental to the people downstream, that a total restraint such as that caused was not allowable in the eye of law whatever be the volume of water reaching the lower level, that there should not be any kind of obstruction to the flow of water or its storage by any other form and that neither the petitioner nor the 6th respondent could be allowed to put up the bund.
3. The petitioner has amended the Original Petition to quash Ext. P-2 also.
4. The 6th respondent has subsequently brought Crl. R.P. 234 to quash the order.
5. One Mohammed Basheer, Kanji-rappally who is described as the Chairman of the Action Council in the matter of Padappady Thodu is a common respondent in the Original Petition and Crl. R. p. He has filed counter-affidavits in both the cases.
6. Besides counsel for the parties I heard the learned Government Pleader also.
7. The cases involve a common controversy and can be disposed of by a common judgment. It is admitted that with the consent of the Parathodu Panchayat the 6th respondent had constructed a stone bund across the canal within the Panchayat for the better cultivation of the properties owned by him and possibly of other properties also. The height of the bund is not in evidence, but the order of the 4th respondent states that it is a metre. The order was passed in June 1983 which was in the middle of summer. The level of water in the canal at that time is not clear from the records nor is it possible to know the level of water during the monsoon months. It is however obvious that during summer the obstruction of water by the bund will be greater than during monsoon, but it is not known whether the bund will deprive people downstream in the Kanjirappally Panchayat of all their requirements throughout the year. The 4th respondent who could have investigated these aspects and collected helpful material has not done so. It appears that a proposal was made by the President of the Parathodu Panchayat for reducing the height of the bund so as to allow the water to overflow the bund for the benefit of the Kanjirappally Panchayat. This proposal was opposed by the President of the Kanjirappally Panchayat and Chairman of the Action Council and was rejected. Besides rejecting the proposal the 4th respondent has observed, as mentioned above, that the obstruction by the bund, whatever be the height of the bund and whatever be the level of the water, reaching the lower stream, could not be legally allowed.
8. Counsel for the petitioners strongly contested this reasoning of the 4th respondent arguing that the conclusion is not only wrong in law but was beyond his jurisdiction in a proceeding under Section 144, Crl. Procedure Code. There is considerable force in the former contention but it is unnecessary to determine it finally as I am satisfied that the order cannot be sustained under Section 144, Crl. Procedure Code.
9. Section 144, Crl. Procedure Code, empowers the Magistrates therein specified where there is sufficient ground for proceeding under that Section and immediate prevention or speedy remedy is desirable, to pass an order directing 'any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.' Sub-section (4) provides that 'no order under this Section shall, remain in force for more than two months from the making thereof.' The following proviso which is not directly relevant gives power to the State Government to extend the period of the order.
10. In my view, the order suffers from at least two serious vitiating flaws. For one thing, it violates Sub-section (4) which limits, except where the Government acts under the proviso, the validity of the orders that could be passed under the Section to two months. Ext. pl either by itself or with Ext. P2 is indefinite in duration and is irrevocable in nature. After the order is implemented either by the 6th respondent voluntarily or by the 4th respondent coercively, the cause of the complaint would have completely disappeared, in other words the order would have completely destroyed the cause.
11. Turning to the decided cases in Cherappai v. Mathoo ILR (1960) Ker 1254 : 1961(1) Cri lj 659, Govinda Menon. J. held that 'Section 144, Cr. P.C. provides that the order is to remain in force only for a period of two months, This means, that the order must not be in its nature irrevocable, and must be such that it can be recalled on the expiry of two months.'
12. In an early decision Gopi Mohun v. Taramoni Chowdhrani (1880) ILR 5 Cal 7, the Full Court of 12 Judges observed, with reference to Section 518 of the Code of 1861 corresponding to Section 144, '...although such order may, no doubt, for what seems to the Magistrate sufficient cause, restrain a man in the otherwise lawful exercise of his rights, such restraint ought clearly not to be indefinite in its terms, or to have effect beyond the urgency which it was intended to provide for' (page 19) and that 'the grant of what is in effect a perpetual injunction is entirely beyond his powers.' (page 20). This decision has been approved in Acharya Jagdishwara-nand v. Police Commissioner. Calcutta : 1983CriLJ1872 . In the latter case the Supreme Court held (para 14) :
The proviso to Sub-section (4) of Section 144 which gives the State Government, jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under Section 144 of the Code to remain in force beyond two months when made by a Magistrate.' and
This postulates a situation temporary in character and, therefore, the duration of an order under Section 144 of the Code could never have been intended to be semi-permanent in character.
In Md. Gulam Abbas v. Md. Ibrahim : 1978CriLJ496 , the Supreme Court observed (para 2) :They are only temporary orders which cannot last beyond two months from the making thereof as is clear from Section 143(6) of the Code. Questions of title cannot be decided here at all.
13. Although in view of the pronouncement by the Supreme Court it may not be necessary to dilate further, I might make a brief reference to a few other relevant decisions as well. In Tilak Kohar v. Emperor AIR 1929 Pat 523 : 1930-31 Cri LJ 967, the scope of Section 144 fell to be considered, although the case itself concerned a prosecution for murder and other offences. After pointing out that the Sessions Judge was under the impression that the order of the Magistrate under Section 144 amounted to a direction to remove a bandh. Fazal Ali, J. who delivered the judgment on behalf of the Bench, observed :
It is well established law that it is beyond the jurisdiction of a Magistrate to pass an order like this under Section 144, Criminal P.C.
In Ram Narain Sah v. Parmeshwar Prasad Sah AIR 1942 Pat 414 : 1942-43 Cri LJ 722, a Magistrate passed an order restraining the petitioner from further building his house on a plot of land for two months. In setting aside the order the High Court observed :
Any order under Section 144, whether it directs a party to abstain from a certain act or to take certain order with certain property in his possession etc. must be of a temporary character, which means that it must not be irrevocable in its nature or partake of the character of a perpetual injunction.
The Magistrate has no jurisdiction under Section 144 to pass an order which 'is not limited in time, but on the face of it purports to be of the nature of a perpetual injunction'.
The court remarked that the Magistrate failed to see that an order to demolish a wall if carried out implied an order of which the operation could not be limited to two months. The learned Judge followed several decisions including AIR 1929 Pat 523 : 1930-31 Cri LJ 967.
14. On a consideration of the provisions of law and reported decisions I find it impossible to sustain the orders f6r they are unlimited in duration and permanent in their effect and thus offend Section 144, Counsel for the respondent and the learned Government Pleader contended that I should not interfere at the instance of the 6th respondent, who has even without a semblance of right, constructed the bund across a public canal obstructing the flow of water harming the cultivators and others in need of the canal water in the Kanjirapally Panchayat. This contention forgets that the 6th respondent put up the bund with the permission of the Parathodu Panchayat.
15. They also contended that as the Magistrate has found that the bund had caused the stoppage of water flow, reversal of the order would lead to the continuance' of the stoppage thus working harm and prejudice on the public and that however defective it might be, the order should be maintained. It is difficult to accept the argument. If the order is bad and beyond the terms of the Section as I am satisfied it is, it has to be set aside. The Criminal procedure Code contains other provisions under which action could be taken in respect of disputes over water and waterways and remedies could be given on evidence after enquiry. In the present case there was no enquiry or investigation into the nature of the rival rights. The affected parties themselves are not without remedies, for the Kanjirappally Panchayat and people within that Panchayat, who might be affected by the bund, could sue seeking appropriate reliefs. The argument is really no valid argument for the maintenance of the order.
16. There was some doubt whether the order which was open to challenge under the Criminal Procedure Code could be interfered with under Article 226, Constitution of India. It is needless to discuss the point as the order is in challenge in the Criminal Revision Petition also.
17. I set aside the orders of the Sub-Divisional Magistrate dated 4-6-1983 and 8-6-1983 and allow the Criminal Revision. The original petition is dismissed but without costs.
Issue carbon copies of the judgment to counsel for the petitioners and respondents on payment of the usual charges and to the Government Pleader free of cost.