1. This matter was referred for the decision of the Full Bench by a Division Bench consisting of Bartley, J., and Lodge, J. in these terms:
This rule was issued on the District Magistrate of Faridpur and the opposite party to show cause why an order made under Section 147(2), Criminal P.C., should not be set aside. The facts are that a path leading from the house of Abdur Rahaman Mulla, the opposite party, to the public road passed over the lands of the petitioner, Hem Oh. Banerji. The opposite party claimed a right of public user over this path; petitioner objected, and finally closed the path by erecting a stable on it. Proceedings were taken under Section 147, Criminal P.C., with the result that the Magistrate made the following order:Thus I order that Abdur Rahaman and his family may use the path, and Hem Ch. Banerji is prohibited to make any interference with the exercise of a right of way of Abdur Rahaman and his family. He is further ordered to remove the stable from the path.
2. It is to the last sentence of the order that exception has been taken, and the point argued in connexion with it is that no such mandatory order can be made under Section 147(2), Criminal P.C. The wording of that section is 'if it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.'
3. The question for decision is whether these words can be construed as empowering a Magistrate to order the removal of an existing interference with the right in question. Reported decisions of this Court on the point are in direct conflict. 'Under the law as it was before the amendment of the Code of Criminal Procedure, a Magistrate was empowered to make an order permitting such thing to be done, or directing that such thing shall not be done.'
4. It was held in three eases decided before the amendment, Pasupati Nath Bose v. Nando Lal Bose ('01) 28 Cal. 734. Lalit Chandra Neogi v. Tarini Prosad Gupta (1900) 5 C.W.N. 335 and Ambica Prosad Singh v. Gur Sahay Singh ('12) 39 Cal. 560 that these words covered an order to remove an existing obstruction. After the amendment of the Procedure Code in 1923, however, it was held, in Hari Mati Dasi v. Hari Dasi Dasi : AIR1925Cal991 that the change in the language of Section 147 resulted in the position that the Magistrate no longer had any power to direct one of the parties to do a positive act, which was in the particular case, to demolish a wall. The Hon'ble Judges, Newbould and B.B. Ghose, held that the power given to a Magistrate under Section 147 (2), Criminal P.C., as amended, was analogous to the power of a Civil Court to grant a temporary injunction restraining a person from doing a Certain act, but did not authorise an order in the nature of a mandatory injunction directing a party to perform a certain act.
5. This interpretation of the section wag adopted by another Division Bench of the Court in Tarini Mohan De v. Dwarka Nath : AIR1934Cal556 . In a later case, Haradhone Mukherji v. Brojendra Nath Rai : AIR1937Cal513 the point was tersely settled in two sentences:
The first objection taken is to this mandatory injunction. There is nothing in Section 147 which would entitle the Magistrate to direct the petitioner to pull down this wall.
6. The contrary view has, however, been taken in at least two cases decided by Division Benches of the Court. The earlier is Khajer Naskar v. Tabrez Ali Naskar : AIR1933Cal752 in which it was held that an order directing the removal of an obstruction was within the scope of Section 147 (2), Criminal P.C., though it was there pointed out that such an order was not strictly in the terms of the section. The later case, which also appears to be the last reported decision on the point, is Badridas Agarwala v. Sohan Lal Oswal : AIR1940Cal545 . In that case the Bench approved of the decision of a single Judge of the Madras High Court, in which he held that the amendment of Section 147 had no effect on the powers of a Magistrate to direct the removal of an obstruction, and said that they 'prefer to follow the decisions in which it has been held that Section 147 does, in a proper case, empower a Magistrate to order a person to do something, or in other words, to direct a mandatory injunction.'
7. We find it difficult to hold that the words 'prohibit' and 'remove' can be construed to mean the same thing, and incline to the view that if the Legislature had intended to give powers to direct the removal of an obstruction, the Legislature would have said so in unambiguous language such as is used in Section 133, Criminal P.C. We are therefore of the opinion that it is more correct to follow the decisions in Hari Mati Dasi v. Hari Dasi Dasi : AIR1925Cal991 . Tarini Mohan De v. Dwarka Nath : AIR1934Cal556 and Haradhone Mukherji v. Brojendra Nath Rai : AIR1937Cal513 previously referred to, but as this view involves a difference on a point of law from the decisions in Khajer Naskar v. Tabrez Ali Naskar : AIR1933Cal752 and Badridas Agarwala v. Sohan Lal Oswal : AIR1940Cal545 we refer the following question for decision to a Full Bench. 'Whether a Magistrate acting under the powers conferred by Sub-section (2) of Section 147, Criminal P.C., has the power to issue a mandatory injunction directing the removal of an existing obstruction.' As the point is one which frequently comes up for decision, it is very desirable that the question should be finally settled so far as this Court is concerned.'
8. I am of the opinion that that part of the order which provides as follows, 'I order that Abdur Rahaman 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 Rahaman 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), Criminal 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 : AIR1931Cal263 . With regard to the cases that have taken the contrary view it is sufficient, in my opinion, 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.
9. 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.
10. I agree.
Nasim Ali, J.
11. I agree.
12. I agree.
13. I agree.