1. This is a reference by Ratnaswami J., on the question as to whether Section 147 Cri. P. C., empowers a Magistrate only to pass a prohibitory order, which is generally in a negative form, or whether it empowers a Magistrate to issue a positive order to secure the exercise of the right of the aggrieved party, who complains of the infringement of his right.
2. The reference has arisen out of an order passed by the learned Ex-Officio First Class Magistrate, Namakkal, in regard to a channel concerning which a dispute arose between the A and B parties and which channel at the time of the enquiry before the Magistrate had become obliterated and had ceased to be a channel functioning as such. The operative portion of the order against which a revision was preferred before the learned Judge is contained in paragraph 9 of the order passed by the learned Magistrate. After reviewing the entire evidence let in before him the learned First Class Magistrate of Namakkal observed therein as follows :
"The learned counsel of the B party finally argued that this Court has no jurisdiction to pass a mandatory order under Section 147 Cr. P. C., since the channel has been destroyed. He has also quoted several rulings of various High Courts outside the Madras State. But I find that the Madras High Court's orders, Venkanna v. Venkata Surya Neeladri Rao, AIR 1930 Mad 865 (A) and Thoongavadan v. Perumal Coundan, AIR 1941 Mad 752 (B), permit an order under Section 147, Cr. P. C., in the nature of mandatory injunction.
The right of A-party to take water from Athu tholai in S. No. 299/4 along with the B party's land has been clearly established from the revenue records and the evidence. I hereby order under Section 147 (2) Cr. P. C., prohibiting any interference with the exercise of such rights of A party to take water from Athu tholai to irrigate his lands S. No. 299/3".
Ramaswami J., in his order of reference observed that this paragraph in the order of the learned Magistrate gave rise to two divergent views, namely, whether Section 147 covered or did not cover a case of an order directing somebody to remove an obstruction, if the removal of that obstruction was necessary to prevent that person from interfering with-the right of the person asking for the order. The learned Judge has further observed,
"On this point the High Courts have taken conflicting views. The submission made by the learned advocate, Mr. Mohan Kumaramangalam, that it is not possible to pass an order directing somebody to remove an obstruction, if the removal of that obstruction is necessary to prevent that person from interfering with the right of the person asking for the order, is supported by a Full Bench decision of the Calcutta High Court. The learned advocate Mr. Nagarajan seeks to submit the opposite view, which is supported by a Full Bench decision of the Allahabad High Court. On this point other High Courts also have taken different views."
Then the learned Judge discussed the decisions of the various High Courts commencing from In the Matter of Alfred Lindsay, ILR 4 Mad 121 (C), and ending with Abdul Wahab Khan v. Md. Hamid Ullah. (FB) (D).
3. In ILR 4 Mad 121 (C), a Bench of this Court over which the Chief Justice presided held that an ex/parte order, purporting to be made under Section 532 Cr. P. C., directing the party in possession not to retain possession of the land until he should obtain the decision of a competent civil Court adjudging him to be entitled to exclusive possession, with a further direction to remove the obstruction was bad in law. This decision was under the old Code, that is Act X of 1872
4. In Karuppanna Kownden v. Kandaswami Kownden, 26 Mad LJ 233: (AIR 1914 Mad 712) (E) which was again a decision under the old Criminal Procedure Code before it was amended in 1923, a Bench of this court consisting of Sadasiva Ayyar and Spencer JJ., held that an order under Section 147 Cr. P. C. was not liable to be set aside merely on the ground that an order under Section 144 had already been made in respect of the same matter unless the court considered that the magistrate's apprehension of breach of the peace was altogether unreasonable in the circumstances of the case. The relevant passage in the order passed in 26 Mad LJ 233: (AIR 1914 Mad 712) (E), is at page 234 (of Mad LJ): (at p. 712 of AIR). While considering the previous decision in ILR 4 Mad 121 (C), the learned Judges observed as follows :
"In ILR 4 Mad 121 (C), it was held that where the obstruction to the path was a permanent one consisting of a wire fence, a trench and a wall and the order of the Magistrate was passed ox parte without due inquiry such an order was not a proper order to be passed under the old Section 532 (corresponding to Section 147). The learned Judges held that the proper course was to take action under the section relating to public nuisances (Ch. X of the present Code).
That case might be distinguished on the ground that the obstruction in this case was a flimsy fence but whether it is so distinguishable or not we are not prepared to follow it if it was intended to decide therein that the fact that Section 133 Cr. P. C., expressly provides for an order by the Magistrate directing the removal of obstruction to pathways necessarily implies that a similar order cannot be passed in proceedings taken under Section 147 CR. P. C. The same remark applies to the similar obiter dictum in Lutchmiah Maistry In re, 1 Weir 143 at p. 144 (F)."
5. In 59 Mad LJ 430: (AIR 1930 Mad 865) (A) Pandalai J., held that the Magistrate had power under Section 147 Cr. P. C., to pass an order directing the removal of obstruction to pathways, even though such an order might he in the nature of a mandatory injunction, and that the amendment Act of 1923 (XVIII of 1923) had not altered the law in this respect. The learned Judge followed the decision in 26 Mad LJ 233: (AIR 1914 Mad 712) (E), and did not follow the decision in Hari Mati Dasi v. Hari Dasi Dasi, 30 Cal WN 238: (AIR 1925 Cal 991) (G). The learned Judge in this decision while considering) the difference between the old section and the section under new Code observed that the amendment of 1923 did not make any great difference between the powers vested in the Magistrate under Section 147. The following passage from that decision is relevant :
"Section 147 Cr. P. C., before it was amended in 1923, dealt, like the present section, with disputes concerning the right of use of any land or water and it enabled the Magistrate, if such right was found to exist, to make an order 'permitting such a thing to be done or directing that such a thing should not he done'. The corresponding provision of the section as it now stands is that if the dispute exists 'regarding any alleged right of user of any land or water' the Magistrate is empowered on his being satisfied about the existence of such a right, whether it be claimed as an easement or otherwise, to 'make an order prohibiting any interference with the exercise of such rights'.
The order under the old section was directed to the person alleging that he was entitled to the right. The order under the new section is where the right exists directed to the person who is interfering with the right. Such an order is valid so long as it merely prohibits the interference with the exercise of the rights. I do not see how from this difference any inference is to be derived as to the propriety or otherwise of what may be generally called mandatory injunctions."
The learned Judge then went on to discuss the appropriate form in which the order should be issued and in dealing with that he observed as follows:
"As, however, the form of order used by the magistrate is not suitable, that order will be amended by omitting the words 'from interfering with the petitioner's removing the obstructions already put up' and substituting therefor the words 'from retaining any obstruction to the petitioner's use of the water flowing along the channel in their field."
With that amendment that petition was dismissed.
6. The next case referred to by the learned counsel appearing for the petitioner is the one reported in AIR 1941 Mad 752 (B). This is very short order and docs not contain much of a discussion. The order was in terms that the counter petitioners should not retain the bund referred to above or any obstruction to the flow of water from the tank which would cause the submersion of and damage to the crops of the petitioners. Lakshmana Rao J. disposed of the petition with a very short observation :
"There is no substance in the contention that Section 147 Crl. P. C. is not applicable and it was open to the Sub-Divisional Magistrate to direct the petitioners to remove the dam put up by them on the surplus weir of the tank. But the further direction that they shall not cause any obstruction to the flow of water from the tank which would cause the submersion of and damage to the crops of the opposite party is beyond the scope of Section 147 Crl. P. C. and to that extent the order of the Sub-Divisional Magistrate is vacated."
Otherwise the petition was dismissed.
7. The next important decision that is relied upon by the learned counsel for the petitioners is the one reported in Hemchandra v. Abdur Rahman, AIR 1942 Cal 244 (FB) (H). This decision happened to he the sheet-anchor of the arguments advanced by the learned counsel for the petitioners, A Full Bench of five Judges presided over by Derbyshire C. J. on a reference by a Bench of two Judges of the Calcutta High Court came to the following conclusion, which is worthwhile extracting in this judgment. The learned Chief Justice observed,
"I am of the opinion that that part of the order which provides as follows : 'I order that Abdur Rahman and his family may use the path and Hem Chandra Banerjee is prohibited to make any interference with the exercise of the right of way of Abdur Rahman and his family' is correct in law if not in grammar. I am further of the opinion that the following part of the order 'He (i. e., Hem Chandra Banerjee) is further ordered to remove the stable from the path' is beyond the powers of the Magistrate under Section 147(2) Cri. P. C.
It is one thing to make an order prohibiting the doing of an act, it is another to order the doing of an act. The sub-section allows the former, but it does not allow the latter. The position seems to be somewhat similar to that dealt with by Rankin C. J. in Emperor v. B. N. Sasmal, ILR 58 Cal 1037: (AIR 1931 Cal 263) (I). With regard to the cases that have taken the contrary view, it is sufficient, in my pinion, to say that what the sub-section allows, the magistrate may do and nothing else. If the aggrieved party wishes any fuller or further relief from the courts the civil courts are open to him and the remedy is a mandatory injunction".
8. The learned Chief Justice further observed,
"I am therefore of the opinion that that part of the order which reads 'He is further ordered to remove, the stable from the path' should be struck out. To that extent the rule is made absolute".
9. The decision reported in Shantilal Maganlal v. Dahyabhai Gordhanbhai, ILR 1954 Bom 733: (J) was in entire
agreement with the decision of thy Full Bench in ILR (1942) 2 Cal 75: (AIR 1942 Cal 244) (II) and also the decision of the Nagpur High Court in Syed Usman Ali v. Emperor, ILR (1938) Nag 580: (AIR 1938 Nag 297) (K). The Bombay High Court did not agree with the view taken by our High Court in the earlier decisions referred to above. The decision that is in accord with the decisions of our High Court is the one (FB) (D). It may be mentioned hereunder
that this decision took a far more extreme view than the view taken in the decisions of this court. There the Full Bench decided that,
"A power to effectuate a certain object which the legislature his in view must be construed as implying the existence of all such ancillary powers as are necessary for carrying out the intention of the legislative and effectuating the object in view. No doubt, under Section 147 the jurisdiction of a magistrate is confined only to the passing of prohibitory orders which are generally in a negative form and ha has no power to issue every kind of positive orders to secure the exercise of the right of user by one party.
But in order to make a prohibitory order effective, the magistrate his power to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. In passing such orders the Magistrates must however, bear in mind that their jurisdiction under Section 147 is confined only to preventing breach of the peace and they are not expected to hold complicated enquiries as to title and try to adjust the same. Their orders are intended to be only of a temporary nature till the rights of the parties ore finally determined by competent courts."
10. It is to be noticed that in this decision the leading judgment of Agarwala J. went to the extent of saying that the Magistrate had power to issue mandatory injunctions under Section 147. The learned Chief Justice Malik C. J. and Musthaq Ahmad JJ. did not wholly concur with the view expressed by Agarwala J. but qualified their concurrence, which seems to us worthwhile noticing. The learned Chief Justice observed,
"I generally agree with what my brother Agarwala has said in his judgment. I would however like to guard myself against being understood to mean that, under Section 147 Crl. P. C. Magistrates have jurisdiction to issue orders even in the nature of mandatory injunctions. It must be borne in mind that Section 147 and similar other sections were not intended to give to the magistrates power to decide disputes relating to rights of the parties.
The sole object behind these sections is to prevent breaches of the peace, and if a magistrate finds that there is a likelihood of the breach of the pence and that is due prima facie to the wrongful act of a person, he can direct that person to desist from doing a wrongful act everything incidental thereto must be included, that is, if it is necessary for the wrong-doer to remove himself or remove any obstruction that he has placed in the way of the enjoyment of the right of the other side, he must also remove that.
In passing such orders the magistrates must, however bear in mind that their jurisdiction under these sections is confined only to preventing breaches of the peace and they are not expected to hold complicated enquiries as to title and try to adjust the same. Their orders are intended to be only of a temporary nature till the rights of the parties are finally determined by competent courts. So far as I can see from the judgments of the lower courts no substantial construction had been built. Some sort of a mud wall was being put up to block the way when the opposite party filed his application under Section 147."
We think the observation of the learned Chief Justice of the Allalabad High Court accords with our own view on the point under consideration and the view that has been generally held by this court in the previous decisions, which we have referred to above.
11. Considering the scope of Sub-section 2 of Section 147, which directs that the Magistrate can prohibit any interference with the exercise of the right of the aggrieved party, we think that a negative order can include a positive direction to make the prohibition effective and useful. The object of the sections, which fall under Ch. 12 relating to disputes as to immoveable properties being to secure the maintenance of peace and to enable the parties to enjoy their rights until there is a final determination by the civil court, 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 is true as contended by the learned counsel for the petitioners that care should be taken always that Criminal courts do not encroach upon the jurisdiction of the civil courts and that criminal courts should decide the issue of prohibitive orders in such case upon the fads and the nature of the right that has been infringed or violated by the party against whom the petition has been preferred. The prohibitory order that to be issued by the Magistrate will therefore depend upon the nature of each case and the circumstances in which the aggrieved party has approached the Court.
In the present case, just before the application was filed before the Magistrate, the evidence is to the effect that the channel, through which water was being carried from Athu tholai by the A-party to their lands. was obliterated and if this channel was to be restored by the A-party itself, surely there was a likelihood of a breach of the peace and such breach of the peace was the very thing intended to be prevented by the exercise of the powers given to the magistrate under Section 147.
But in preventing the breach of the peace it is also intended under this section that in the exercise of its right the party which approaches the court should not be given a merrily bare paper order to the effect that the other party, which has committed an infringement of the right, is prohibited or prevented from interfering with the exercise of that right. Such an order in the circumstances like the present where the channel has been obliterated will certainly he of no avail, and the party need not approach the court if it were merely to content itself with obtaining an order prohibiting the counter party from interfering with the exercise of the right Obviously the counter party is not likely to do anything further after having already obliterated the channel itself. The order of prohibition becomes then only futile. At the same time, it may not also be quite in the interests of peace and its maintenance that there should be a power given or a right vested in the aggrieved party approaching the magistrate that he should be entitled to restore the channel himself, in which case there is again the possibility of the counter petitioner interfering and committing breach of the peace.
12. Therefore, in our view the proper form of the order should be very important consideration and the proper form of any order that a magistrate should in such circumstances pass has been set out in the decision in 59 Mad LJ 430: (AIR 1930 Mad 165) (A) of Pandalay J. with which we agree. It has also to be remembered that, if an aggrieved party's rights are to be protected temporarily, till the parties establish their rights through civil court, unless there is some kind of prohibition against the party who is the aggressor, the party approaching the court will not be in a position to exercise the right, which it claims against the opposing party.
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. 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. It is therefore quite necessary and essential that the objects underlying the power given to the magistrate under Ch. 12 and the various sections coming within that chapter should he achieved when the magistrate passes orders in the interests of peace. We are therefore in general agreement with the ruling in the Full Bench decision of the Allahabad High Court.
13. But, while expressing our accord with that decision so far as the application of that decision to the circumstances in the present case is concerned, we find that there are a few lacunae in the present case. In the first place we find that there has been no definite finding by the learned Magistrate, who passed the order, as to what exactly has been the nature of the channel through which A-party has been carrying on water to their lands.
In the second place, it is also not clear from tile finding of the learned magistrate as to what exactly has been the character of the destruction of the channel. In the third place there is not enough evidence to show as to how exactly the channel lay. There is no finding with regard to this either. In the absence of these findings in the order passed by the learned Magistrate, we think that in the interests of justice and to secure maintenance of peace, it is desirable that there should be a further investigation by the learned Magistrate into the nature of the channel, its lie and also the nature of its destruction, or obstruction placed against its functioning, and then the Magistrate should proceed to pass an order as to what exactly should be prohibited from being resorted to by the counter petitioners while the petitioners seek to exercise their right to take water from Athu tholai to their lands through the previously existing channel.
If the nature of the channel and its obstruction has been such that it could be restored without any great cost or inconvenience to the counter petitioners, it must be just and necessary that they should be directed to restore the channel in order Suit the A-party might exercise their-right to the taking of water to their lands through the channel and a reasonable time should be given to the B party to restore the channel. In case the B party fails to restore the channel within the given time, then it will be open to the Magistrate to appoint a Commissioner to see that the channel is restored at the cost of the B party.
These orders and directions will of course be subject to the rights of either party to proceed to a civil court to establish its rights. With these observations the matter is remanded back for further investigation and orders according to law in the light of the observations contained herein above. The magistrate will dispose of this matter as expeditiously as possible.
Panchapakesa Ayyar, J.
14. I entirely agree with the judgment of my learned brother delivered just now. But in view of the importance of the matter, I want to add a few words.
15. Mr. Mohan Kumaramangalam was stressing the point that under the amendment of Section 147 Crl. P. C. in 1923, the old right conferred on the court, under Section 147 Crl. P. C. to make an order permitting such thing to be done or directing that such thing shall not be done, as the case may be, has been taken away and the present Section 147(2) simply says that if it appears to such magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right, thereby taking away the power to direct a person to do such thing as the court wants.
In other words, the contention was that all power of a court to issue a mandatory injunction even to make the prohibition effective is taken away by the amendment. This point has been considered and rejected by this court in 59 Mad LJ 430: (AIR 1930 Mad 865) (A) by Krishnan Pandalai J. who has given sound reasons for his view. It may be that the wide powers conferred under the unamended section have been restricted to some extent by the amended section, since the magistrate acting under Section 147(2), has not got the same wide powers regarding mandatory injunctions as a civil court, as remarked by Malik C. J. in (FB) (D). Thus, for instance, if a person's right to ancient rights has been infringed by a neighbour building a palace costing a lakh on his own adjoining ground it may not be proper for the magistrate, acting under Section 147(2) Crl. P. C. to direct him to pull down that palace. So too, if in a dispute between two parties over a piece of land, one of the parties has pulled down a costly building on it, claiming it to be his, but claimed by the other to be his, it may not be proper for the magistrate, acting under Section 147 (2), to direct the reconstruction of that building by the offending party.
Everything depends on the circumstances, and the reasonableness of the direction. But surely a court is not to stultify itself by passing worthless orders benefiting no one, and allowing the wrongdoer to get away with it. For a court to solemnly make an order prohibiting any interference with the exercise of a right of way or right to water, but allowing the interference to continue, by not directing the wrong-doer to Pull down the offending wall or fence or hedge or reconstruct the small channel filled up by him, will he stultifying itself, and no court can be asked to do that.
All the time, money and energy spent in going to the court will be a sheer waste. It is not correct to say that a negative thing can never justify a positive thing as urged by Mr. Mohankumaramangalam, even when the negative thing can only be carried out by the positive thing. Thus, if a person is directed not to fail to feed his child, it will necessarily involve feeding the child. If a person is directed not to interfere with the right of way or right to water of another, it will necessarily need directing him to remove the obstruction, provided, of course, the expense of doing so is not great, and the direction is reasonable.
16. Mr. Mohankumaramangalam's reliance on the Bombay Division Bench decision in (J)7 rejecting the Madras ruling in 59 Mad LJ 430: (AIR 1930 Mad 865) (A), and AIR 1941 Mad 752 (B); is not of much weighty as the only reason given in that decision for rejecting the Madras rulings was that they were by single judges, and the reasoning in those rulings was not considered and repelled. I consider the reasoning in those rulings to be sound. There is also no Madras ruling the other ways.
17. I also consider that the proper course is to direct the wrong-doer, provided all Other conditions are satisfied, to remove his obstructions, or to restore the channel, within a specified time, say 14 days, failing which the court should appoint a Commissioner to do it at his expense and that it is not advisable to allow the other party to carry out the thing directed in the mandatory injunction, as that may lead, as remarked by Pandalai J. to even greater breaches of the peace.
I also consider that when the court has issued an order under Section 147 (2) Cr P. C against the wrong-doer, it is the wrong-doer who should be forced to resort to the civil court (and not the wronged party) and that till he does so and gets an order from the civil court, the Magistrate's order will stand.