1. In answering the questions which have been referred to us by the Division Bench, it will be convenient in the first place to dispose of the last and most important of them, viz., whether the Magistrate was competent to pass the order complained of under the provisions of Section 518 of Act X of 1872.
2. The order was in these terms:
To Gopi Mohun Mullick, inhabitant of Paikara, Purgana Sherpur. Case--Unlawful assembly.
It has appeared at the trial of the said suit, that a haut, having been established since 20 or 25 years at Taragunj, the estate of the said Chowdhrani, is duly held every week on Tuesday and Friday. At present you having set up a new haut at Nalitabari, which is quite close to the said haut, have fixed Tuesdays and Fridays, in other words, the days on which the Taragunj haut is held, for holding your newly-established Nalitabari haut. Since, by reason of the day fixed for holding this newly-established rival haut being exactly the days on which the Taragunj haut is held, an occurrence leading to a breach of the peace took place at the said newly-established Nalitabari on the 20th of April 1875, corresponding with the 8th of Bysack of the year 1282 B. Section Consequently, unless the days for holding the said Nalitabari haut be altered, there is every likelihood of man's health and peace being affected, and of affrays and breach of the peace taking place in future. Hence you are hereby prohibited from holding the Nalitabari haut on Tuesdays and Fridays in accordance with the provisions of Section 518 of the Criminal Procedure Code, and you are ordered to alter the days for holding the said haut. The 31st May 1875.
3. We may assume, for our present purpose, that the circumstances under which the Magistrate was called upon to interfere, were such as to enable him to make an order of some kind under that section.
4. The question is, whether he had the power, under any circumstances, to make an order prohibiting the plaintiff forever from holding a haut on every Tuesday and Friday on his own land.
5. We believe that this is the first occasion on which this point has been seriously considered by a Full Bench of the Court; and as we are aware that Magistrates in this country have been in the habit of making orders of this nature, restraining persons for an indefinite period from the exercise of civil rights over their property, and as this practice has apparently derived some sanction from former Full Bench decisions of this Court, it has been thought advisable in this instance to take the opinion of the whole of the Judges, in order to determine a question, which undoubtedly is of very great importance to the public.
6. The first of these decisions is The Queen v. Abbas Ali Chowdhry (6 B.L.R., 74). The order of the Magistrate in that case was made under Section 62 of Act XXV of 1861; and the only question raised was, not whether the order itself was good or bad, but whether the High Court had any power to deal with it as a Court of Revision and it was held, that as the order was not a judicial act, the High Court had no such power.
7. The next of these decisions was In the matter of Bykuntram Shaha Roy (10 B.L.R. 434, s.c, 18 W.R., Crim., 47). The' order there also, which was similar in its terms to that which we are now considering, was made under Section 62 of the Act of 1861; but the question which was argued and decided there was, whether a Magistrate under that section could prevent a land-owner from doing a lawful act on his own land, it being contended that he had only a right be prevent acts which were in themselves unlawful.
8. The point which is now before us, namely, the time during which such an order could legally be made, was not raised, or intended to be raised, in that case; for the Chief Justice, in delivering the judgment of the Court, expressly says: 'It is not necessary for us to determine the question, whether the Magistrate has in this particular case exercised his discretion in a proper manner, or whether his order, as it stands, requires any amendment as to the duration of the injunction or otherwise, for these questions have not been referred to us by the Division Bench.' And he goes on to say, that there may be circumstances 'which would justify a Magistrate in issuing an order under Section 62 at least for a limited time,' which shows that the point which we have now to decides, was present to the mind of the Court, although they were not called upon to decide it.
9. The last Full Bench decision, in which a similar order came under discussion, was in the matter of Chunder Nath Sen (I.L.R. 2 Cal., 293). The order there was made under Section 518 of the present Code, with which we are now dealing; and the question referred was, whether this Court had jurisdiction to set aside the order under Section 15 of the Charter Act.
10. It was there contended that under the circumstances the Magistrate had no power to make any order at all, and if that were so, that this Court could and should, under Section 15, have set aside the order as being made without jurisdiction.
11. But the Court decided, that the circumstances were such as to give the Magistrate jurisdiction to act, and consequently that they could not interfere.
12. The point was never raised in that case, though probably it might have been, that the terms of the order itself, as regards its duration, were not warranted by law; and, therefore, we find ourselves now dealing with a point which, although mooted on more than one occasion in this Court and also by the Allahabad High Court, in the case of Kedar Nath v. Rugho Nath (6 N.W.R., 104) is for the first time directly submitted for our determination.
13. The provisions of Section 62 in the Code of 1861 are substantially the same as those of Section 518 of the present Code; but there are certain explanations appended to the latter section, which aid us materially in the construction of it.
14. The first of them relates to the cases to which the section was intended to apply, and shows that it is applicable only where a speedy remedy is called for, and where for either of the reasons specified a more, formal procedure would be inappropriate. We think it would be inconsistent with this expression of the intentions of the Legislature, that a Magistrate should pass under this section an order meant to have more than a temporary operation; and 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.
15. Now, in this instance, it is clear that the order of the Magistrate would have such effect.
16. The plaintiff says, in his plaint, that for many years past he has been in the habit of holding a haut on every Tuesday and Friday in his own mouza; and that as the owner of the adjoining mouza insisted on holding a rival haut on the same days, disputes arose and violence was threatened, which the Magistrate was called upon to prevent: whereupon he made the order in question under Section 518, prohibiting the plaintiff for the future from holding his haut on Tuesdays and Fridays.
17. We consider that the Magistrate had no jurisdiction to make so wide an order; and that the grant of what is in effect a perpetual injunction, is entirely beyond his powers. He might have prohibited the holding of the haut on any particular occasion or occasions; but he had no right to deprive the plaintiff forever of a right to which he was by law entitled.
18. The last question, therefore, is answered in the negative; and we now proceed to deal with the questions 1, 2, and 3, which may conveniently be answered together.
19. The plaint, after alleging that the plaintiff had held his haut on his own land for many years on Tuesdays and Fridays, alleges that the defendant set up a rival haut, and endeavoured to prevent persons from attending the plaintiff's haut. That this led to disturbances, which ended in the order being made by the Magistrate, prohibiting the plaintiff from holding his haut on the above days, and that the plaintiff has suffered loss and damage in consequence.
20. We think that, assuming these facts to be true, the plaintiff is entitled to a decree, declaring that, as against the defendant, he has a right to hold his haut on Tuesdays and Fridays.
21. We are agreed that for the purposes of this Case, it is unnecessary to answer the fourth question.