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Smt. Bhubaneswari Goswami v. Kaliram Burman
Factual and Procedural Background
This is a revision against an order of a Magistrate made in proceedings under Section 147 of the Criminal Procedure Code. The opposite party (described in the opinion as the first party), Sri Kaliram Burman, filed a petition under Section 147 alleging a serious apprehension of breach of the peace arising out of the construction of a new brick wall close to his dwelling. The petition alleged that the wall, 6 or 7 feet high and constructed within a short distance of the first party's house, obstructed air and light from bedroom windows the first party had continuously enjoyed for 28 years; during rains water entered the bedroom through the window; the wall was said to be built on the first party's land and had narrowed a passage used for repairs to 1 1/2 feet, causing damage and inconvenience.
Proceedings were drawn up on 31-7-1958 and notice was served on Musst. Bhubaneswari Goswami (described as the second party) to show cause why the wall should not be demolished. Written statements were filed by the first party on 16-8-1958 and by the second party on 30-8-1958. Both parties led evidence. The Magistrate framed questions concerning (a) whether the second party obstructed the first party's right of user as an easement or otherwise by constructing the wall, and (b) the date of construction (disputed between June and 20th March).
The Magistrate accepted that Section 147 did not contemplate interference with enjoyment of light and air through windows, but found that the new construction had narrowed the passage used by the first party for repairs and therefore applied Section 147. The Magistrate held the first party had established user of the land as a passage, found the wall was constructed in June, and issued a mandatory order directing demolition of the wall within seven days, failing which it would be removed at the cost of the second party. The second party challenged that order in revision to the Sessions Judge, which was rejected. The present petition to the higher court raised further contentions and sought to revise the Magistrate's order.
Legal Issues Presented
- Whether proceedings under Section 147, Cr.P.C. apply where the petitioner claims a user of land that is really an incident of ownership (i.e., the petitioner claims ownership and possession rather than a distinct right of user or easement).
- Whether the notice served under Section 147 in the form of a show-cause to remove the construction is a valid notice under Section 147, Cr.P.C.
- Whether a Magistrate, in proceedings under Section 147, Cr.P.C., has power to pass a mandatory order directing removal of an existing obstruction (i.e., order in the nature of a mandatory injunction) or is limited to prohibitory orders only.
- Whether the proviso to Sub-section (2) of Section 147 (requiring that the right claimed has been exercised within three months before institution of the inquiry) was complied with or considered.
Arguments of the Parties
Second Party / Petitioner (who challenged the Magistrate's order)
- Argued that Section 147, Cr.P.C. does not contemplate interference with the user of a portion of one's own land; where the claimant's user is an incident of ownership (not a right distinct from ownership such as an easement), Section 147 is not attracted and the remedy is a civil suit.
- Contended that the notice issued was defective because it called on the second party to show cause why the construction should be removed, which presupposed the Magistrate had already formed an opinion that the construction was unlawful; such a form of notice is not what Section 147 contemplates.
- Argued that Section 147 does not empower the Magistrate to pass mandatory orders directing removal of constructions and that, additionally, there was no proof the claimed right had been exercised within three months prior to institution of the inquiry (as required by the proviso to Sub-section (2)).
First Party / Opposite Party (Sri Kaliram Burman)
- Claimed ownership and long continued enjoyment (28–30 years) of air, light and of a passage used for repairs, asserting that the new wall obstructed these rights and caused annoyance and damage; sought an order for removal of the wall.
- Contended that even if an alternate remedy such as prosecution under Section 447, IPC exists, that does not preclude relief under Section 147 if the case otherwise falls within that Section.
- Argued that, given the second party continued construction after notice, the Magistrate's mandatory order directing removal was justified in the circumstances.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Aruna-chellam Chettiar v. Chidambaram Chetti, ILR 29 Mad 97 | Consideration of scope of Section 147: observation that the words "concerning the use of any land" cannot be construed as if they required the user to be by a person other than the person in possession; factual holding where person in possession replaced an old fence with a wall and the petition (under S.147) was rejected. | The Court discussed this decision and its observations; noted that in that Madras case the proceedings were quashed because no case under S.147 was made out where the person in possession replaced old fencing by a wall. |
| Venkanna v. Venkata Surya Neeladri Rao, A.I.R. 1930 Mad 865 | Held that in relation to flow of water a Magistrate need not find a strict easement; long use and use during the last season suffice to establish a right of user for S.147 purposes. | The Court observed this decision does not bear on the present facts because it concerned a distinct right (flow of water) not claimed as an incident of ownership; the Court noted the case only shows S.147 is not confined to strict easements. |
| Debendra Kumar Das v. Satish Chandra Das, A.I.R. 1958 Assam 112 | Proceedings were quashed because notice did not ask parties to state their respective cases as required under Section 147; the notice merely asked the respondent to show cause as if the first party's case were made out. | The Court acknowledged this supports the contention that a mere show-cause notice is insufficient; but held that in the present case parties were directed to file written statements and no statement is made that the second party was prevented from filing her case, so the defective notice did not vitiate the entire proceeding. |
| Hem Chandra v. Abdur Rahaman, A.I.R. 1948 Cal 244 (Full Bench) | Held that a Magistrate acting under Sub-section (2) of Section 147 has no power to issue a mandatory injunction directing removal of an existing obstruction; only prohibitory orders are permissible. | The Court cited this authority for the proposition that a Magistrate may lack power to make mandatory orders under S.147; it was relied upon by the petitioner to challenge the Magistrate's demolition order. |
| King Emperor v. Abdullah, A.I.R. 1949 Nap 275 | Followed the Calcutta Full Bench view that under Section 147 a Magistrate has no power to make an order in the nature of a mandatory injunction, only a prohibitory order. | The Court recorded this as further authority supporting the contention that a mandatory removal order may not be warranted under S.147. |
| Abdul Wahab Khan v. Mohd. Hamid Ullah (Allahabad Full Bench) | Held that the power to effect the object of the statute may include ancillary powers necessary to carry it out; express words of S.147 permit prohibitory orders, but to make a prohibitory order effective a Magistrate may have power to order removal of an obstruction if removal is necessary to enforce the prohibitory order. | The Court relied on this Full Bench decision and related Madras authority to accept that in suitable cases a Magistrate may pass an order directing removal of obstructions insofar as necessary to give effect to a prohibitory order. |
| Angappa Gounder v. Krishnaswami Gounder (Madras) | Held that a negative (prohibitory) order can include a positive direction if that is incidental to making the prohibition effective and useful. | The Court cited this Madras decision in support of the view that prohibitory orders may, in appropriate circumstances, include incidental directions for removal to make the prohibition effective. |
Court's Reasoning and Analysis
The Court began its analysis by examining the language and scope of Sections 145 and 147 of the Cr.P.C. It restated that an easement implies a dominant and servient tenement and that a person cannot claim an easement over his own land. Section 145 deals with disputes concerning land or boundaries (disputes about the land itself), whereas Section 147 concerns disputes regarding an alleged right of user in or over land (i.e., a right distinct from ownership, such as a right of way or right to flow of water).
The Court explained that where the right of use is claimed as an incident of ownership (i.e., the claimant alleges ownership and possession of the land and uses it accordingly), the dispute is essentially one relating to the land itself and is properly the subject of Section 145, not Section 147. The word "otherwise" in Section 147 extends the Section to users not strictly easements (for example, by grant or custom), but in all events it must be a right distinct from the use of the land as owner. Consequently, the Court reasoned that Section 147 does not apply to a claimant who asserts the land as his own and claims the user as incidental to ownership.
Applying these principles to the facts, the Court noted that the first party claimed ownership and possession of the land and said he had been using it as a passage for repair of his house. Because that user was alleged as an incident of ownership rather than as a distinct right of user separate from ownership, the Court concluded that the case was not properly within Section 147.
On the notice point, the Court recognized authority holding that a simple show-cause notice framed as if the first party's case were already made out is insufficient under Section 147. However, the Court observed that in the present case the notice also directed filing of written statements and there was no suggestion that the second party was prevented from filing her claim; accordingly, even if the notice was defective in form, the defect did not vitiate the entire proceeding under the facts before the Court.
With respect to the Magistrate's power to pass a mandatory order for removal, the Court reviewed conflicting authorities. The Calcutta Full Bench and an authority cited from Napal were to the effect that under Section 147 the Magistrate has no power to issue mandatory injunctions and may only make prohibitory orders. On the other hand, the Allahabad Full Bench and a Madras decision supported the view that ancillary powers necessary to give effect to an effective prohibitory order (including removal of an obstruction) are available to the Magistrate in suitable cases. The Court accepted that in appropriate circumstances a Magistrate could pass a removal order to make a prohibitory order effective, but decided it was unnecessary to resolve that issue conclusively in this case because it had already found merit in the primary contention that Section 147 was not the correct provision.
The Court further observed that the Magistrate had not properly considered whether the first party had exercised the right claimed within the three months required by the proviso to Sub-section (2) of Section 147. The Magistrate appears to have assumed that use as a passage equated to exercising the right within three months. The Court indicated the proviso further supports the view that Section 147 does not deal with mere user as an incident of ownership, because an owner is constructively in possession continuously and the proviso's temporal limitation would be redundant if ownership-user cases were included.
Finally, the Court noted that the mode of inquiry under Section 147 is to follow Section 145 procedures, and that the substantive difference between Sections 145 and 147 lies in the nature of the right in dispute. Given its determination that the first party's claim was one of ownership (i.e., the matter concerned the land itself), the Court held the proper course was to set aside the Magistrate's order made under Section 147 and to remand the matter to the Magistrate to proceed under Section 145 and to pass such orders as are appropriate under that provision after proper inquiry.
Holding and Implications
Core Ruling: The Court set aside the Magistrate's order made under Section 147, Cr.P.C., and remitted the matter to the Magistrate with a direction to treat the proceeding as one under Section 145, Cr.P.C., and to pass proper orders accordingly.
Implications:
- The direct effect of the decision is to invalidate the Magistrate's order made under Section 147 and to require the Magistrate to re-open the matter and proceed under Section 145 (which deals with disputes concerning the land itself) and to pass appropriate orders after following the procedure applicable to Section 145.
- The Court's reasoning clarifies that Section 147 is not the appropriate provision where the claimant's asserted user is merely an incident of ownership; such disputes are to be considered under Section 145. The Court also observed existing authority on whether a Magistrate may, in suitable cases, direct removal of obstructions to give effect to prohibitory orders, but did not finally resolve that conflict because the primary ground for setting aside the order was the misapplication of Section 147.
- This opinion did not pronounce that it was establishing any new general precedent beyond the application of the statutory interpretation and the authorities discussed; its immediate consequence is confined to setting aside the Magistrate's order and remanding the case for proceedings under Section 145.
1. This is a revision against an order of the Magistrate passed in proceedings Under Section 147 of the Criminal Procedure Code, The opposite party, Sri Kaliram Burman, hereinafter referred to as the first party, made a petition Under Section 147, Cr.PC. Police report was called for and proceedings were drawn up on 31-7-1958. The first party contended that there was a serious apprehension of a breach of the peace with regard to the construction of a brick wall within 1% Feet of the first party's dwelling house. The wall is 6 feet or 7 feet high and is obstructing the air and light from the window of the bed rooms of the first party which he continuously enjoyed for the last 28 years.
During the rains, water falling on the new wall enters the room of the first party through the window inside the bed room which caused great annoyance and discomfort to the first party. The wall is further said to have been constructed on the land of the first party and has caused considerable damage to the house of the first party blocking the passage by narrowing it down to 1 1/2 feet which was used by the first party for the purpose of repairing the walls of his house. Notice was served on Musst. Bhubaneswari Goswami, hereinafter referred to as the second party, to show cause why the brick wall which was being constructed should not be demolished, 18-8-1958 was fixed for filing written statements by both the parties. The first party filed his written statement on 16-8-1958 and the second party on the 30-8-1958.
The second party denied that she had constructed any wall on the land of the first party. The brick wall, according to the second party, had been constructed at a place where an old fencing stood several months before. The first party has built his house just near the boundary and consequently, on constructing the new wall in place of the old fencing, inconvenience may have been caused to him. It was further urged in the written statement filed on behalf of the second party that the first party never enjoyed any right of user over the land in dispute as an easement and, as such, the claim was misconceived. Both the parties produced evidence in support of their respective claims. The Magistrate framed the following questions for determination:
(a) Whether the 2nd party has obstructed the right of user of the land claimed by an easement or otherwise by the 1st party, by construction of the wall as alleged by the 1st party.
(b) If constructed, whether it was constructed in June as alleged by 2nd party or on 20th March as alleged by the 2nd party.
It was urged before the Magistrate by the second party that Section 147, Cr.PC, does not contemplate the case of interference with the enjoyment of the right of light and air through windows. The Magistrate accepted this contention. He, however, held that as the wall constructed on the land of the first party had narrowed down the passage used by the first party for repair of his building for the last 30 years, Section 147 Cr.PC. was applicable. The Magistrate then found that the first party has established that he has been using the land for the purpose of repairing his house and the passage has been narrowed down by the new construction. He further held that the wall was constructed in June and and not in March as alleged by the second party. He was further of opinion that a mandatory order could be passed for the removal of the construction Under Section 147, Cr.PC. and he accordingly passed an order directing the second party to demolish the wall within seven days of the order, failing which the obstruction was to be removed at the cost of the second party. Against this order the second party went in revision before) tile Sessions Judge who rejected it.
2. In the present petition, three main contentions have been raised by the counsel for the petitioner. Firstly, it is contended that Section 147, Cr.PC. does not contemplate the case of interference with the user of a portion of his own land. Section 147, Cr.PC., according to the petitioner, gives jurisdiction to the Magistrate to pass an order in cases where any person's right of user as an easement over the land or any right other than that of an owner in the land is disputed which is likely to result in the breach of the peace. Where the petitioner claims that he has been using the land as an incident of ownership, he possesses no right in the land apart from the ownership, and Section 147, Cr.PC. is not attracted. His remedy, if any, is to bring a civil suit before a proper Court. Secondly, he contends that the notice issued to the second party in the prasent case was defective. The notice was issued to the second party calling upon her to show cause why the construction should not be removed. The form of the notice, according to the petitioner, is defective. This notice presupposes that the Magistrate had formed an opinion that the construction was unlawfully made by the second party. It was lastly contended that Under Section 147, Cr.PC, the Magistrate had no right to pass a mandatory order directing any of the parties to the proceedings to remove the construction. It was further urged in this connection that in the absence of any proof of the fact that the right claimed by the first party had been exercised within three months next before the institution of the enquiry, no order could be made under that Section. Section 147 provides as follows:
Whenever any District Magistrate, Sub-divisional1 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 alleged 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 provided in section 145, and the provisions of that section shall, as far as may be, be applicablo In the case of such inquiry.
Sub-section (2) of Section 145 provides that for the purposes of this Section, the expression "land or water" Includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. It cannot seriously be disputed that a person cannot claim any right or easement over his own land. An easement necessarily implies the existence of a servant and dominant tenement.
An easement is a right annexed to the land, to utilise other land of different ownership in. a particular manner (not involving the taking of any part of the natural produca of that land or of any part of its soil or to prevent the owner of the other land from utilising his land in a particular manner).
3. The first party claimed to be the owner of the land over which the construction has wrongfully been made by the second party. The petitioner cannot claim any right of easement over his own land. It is, however, contended by the counsel for the second party that the words of Section 147, Cr, P, C. are wide enough to cover not only the not of user of land as an easement but any user of the land. Particular emphasis is laid on the words "where such right be claimed as an. easement or otherwise" in the Section. The Section is not confined to cases where right is claimed over somebody else's land.
4. Section 145, Cr.PC. deals with the cases where a dispute likely to cause breach of peace concerning any land or water or the boundaries exists. The Magistrate, on being satisfied of the existence of such a dispute, can make an order in writing and initiate proceedings Under Section 145, Cr.PC. Section 147, Cr.PC. deals with disputes regarding any alleged right of user on any land or water. Section 145 deals with cases where there is a dispute with regard to the land itself likely to result in breach of peace, whereas Section 147 deals with cases where there is a dispute with regard to a right in or over the land.
If the right to use the land is claimed as an incident of ownership and it is alleged that a dispute has arisen as regards such user, it will really be a dispute relating to the land itself, and not in respect of a right in the land. The petitioner was claiming that the land belonged to him. He may have been using it in a particular manner, namely, by utilising it as a passage for the purpose of repairing his house. But there was no legal bar to his using it otherwise than as a passage. He could have, according to his claim, used the land in any manner he liked. So he was not leally claiming merely a right of user in the land but a right of ownership, or in other words, it can be said that he was using the land as he was the owner of the land, and not in the exercise of any limited right of user.
The use of the word 'otherwise' only extends the operation of the Section to cases where a person may not have, strictly speaking, a right of easement, but he may acquire the light of user by grant or by custom. But nonetheless it has to be a right distinct from the use of the land as an owner. The cases where somebody trespasses on the land of others by making construction, may be covered by Section 145 Cr.PC. The petitioner may in that case say that he has been in possession of the land as its owner and by making construction over the land, the other party has dispossessed him and if such an interference of the Dossession of the first party is likely to result in a breach of the peace, Section 145, Cr.PC. will be attracted. Section 147 on the other hand will be available to a petitioner when he claims certain right of user in the land a right different from that of ownership, over his own land.
5. Reliance was placed on behalf of the counsel for the second party on the case of Aruna-chellam Chettiar v. Chidambaram Chetti ILR 29 Mad 97. Particular emphasis was laid on the following observation in that case:
We do not wish to be understood as concurring in the view expressed by the Magistrate if he meant to decide the general question as to the scope of Section 147 of the Criminal Procedure Code, the words concerning the use of any land cannot, we think be altogether qualified and the Section construed as if it contained words that the user to which the dispute relates is a user by a party, other than the person in possession.
In that case, the second party was in possession of the plot of land and erected a compound wall 4 in place of a hedge which existed before it. No consent of the landlord was taken for that purpose. It was urged by the landlord that the second party desired to annex it to his house while it was a cultivable land subject to payment of assessment to him. The other party had asserted that the land belonged to him and that he was. replacing an old dilapidated wall. The petition filed on behalf of the landlord was rejected, on the ground that if the land belonged to the person in possession, he had every right to put up the construction. Even if it did not belong to him and he was in possession as a tenant, enclosing the land in his occupation was not likely to interfere with the landlord's right.
It appears that it was further contended in that case that any use of the land by a person in possession cannot give rise to a dispute regarding a right of user, Only the use of a land in possession of a third party can amount to interference with the right of the user. This contention was not accepted. In the Madras case, it was the tenant who was in actual possession and had replaced the old fencing by a new boundary wall, and it was held that the proceedings were rightly quashed by the Magistrate as no case under .-S. 147, Cr.PC. was made out.
6. In the present case, the first party claimed to be the owner and in possession of the land, and under those circumstances any construction made by the second party cannot be said to amount to interference with the right of user of the first party apart from the right of ownership.
7. The next case relied upon by the second party is Venkanna v. Venkata Surya Neeladri Rao A.I.R. 1930 Mad 865. It was held in that case that in cases of the right of the person to the flow of water down a channel, it is not necessary for the Magistrate to find that a right of easement, strictly so called is established. All that he has to find is that the person has been for long time using the water flowing down the channel and has in- fact used it during the last season. This case has no bearing to the facts of the present case. There the right to flow of water down a channel was claimed not as an incident of the ownership of the land, but as a distinct and separate right. As I have already pointed out, Section 147, Cr.PC. is not confined to the right of user as an easement alone, and the case cited above does not go beyond laying down that Section 147, Cr.PC. does not confine its operation to the right of user as an easement.
It was then contended by the counsel for the first party that the fact that the petitioner has another remedy by filing a complaint Under Section 447, IPC is no ground for refusing him relief Under Section 147, Cr.PC., if it otherwise comes within the purview of the Section. No objection can be taken to this contention. What was urged by the counsel -i for the petitioner was that if there was any danger of a breach of the peace, that could be avoided by taking steps to prosecute the second party Under Section 447, IPC in case she has trespassed upon the first party's land, or by taking proceedings Under Section 107, Cr.PC. But the consideration of the likelihood of a breach of the peace by itself cannot be the ground for giving a wider meaning to Section 147, Cr.PCode than what is justified on the plain language of the Section, In my opinion, there fore, a proceeding Under Section 147 cannot be started when the petitioner is claiming that he has been using the land as an incident of ownership and not .as a right of user.
The finding of the Magistrate that interference with the right of free air and light claimed by the petitioner could not be a ground of starting proceedings Under Section 147, Cr. P, Code, has not been challenged. It can also not be said that annoyance or inconvenience by itself can be a ground for proceedings Under Section 147, Cr.PC. In fact, one of the ingredients of an offence Under Section 447 is that the person must trespass over the land of other with a view to annoy him, and if the construction of the wall led to the annoyance of the first party, the case might have been clearly covered by Section 447. But annoyance by itself gives no right to proceed Under Section 147, Cr.PC.
8. The second contention is based on the fact that the second party was only called upon to show cause why the construction should not be removed. Such a notice is not contemplated by Section 147, Cr.PC.
9. Reliance was placed on the case of Debendra Kumar Das v. Satish Chandra Das A.I.R. 1958 Assam 112. This was a reference by the Sessions Judge. The ground on which the proceedings were ordered to be quashed was that no notice was issued on the parties asking them to state their respective cases as contemplated Under Section 147, Criminal Procedure Code. The only notice served on the second party in this case was asking him to show cause ... why he should not remove the fencing as if it was issued on an assumption that the first party's case was already made out. This observation no doubt supports the contention of the applicant that simply a notice asking the second party to show cause why he should not be asked to remove the construction, is not a sufficient notice Under Section 147, Cr.PCode. But in the present case it is not stated that no written statement could be filed by the second party setting forth his claim to the) land on account of this defective notice. Moreover the order issuing notice further directed the parties to file their written statements. In these circumstances, even if the contention is accepted that the notice was defective, the entire proceeding will not be vitiated.
10. The last point urged is that mandatory order asking the petitioner to remove the constructions is not warranted by Section 147, Cr.PC Reliance was placed in support of this proposition on the case oE Hem Chandra v. Abdur Rahaman A.I.R. 194a Cal 244. It was held by a Full Bench of the Calcutta High Court that the Magistrate acting under the powers conferred by Sub-section (2) of Section 147, Cr.PCode, has no power to issue a mandatory injunction directing the removal of an existing obstruction. He can only make a prohibitory order. In the case of King Emperor v. Abdullah A.I.R. 1949 Nap 275, this decision was followed and it was held that Under Section 147, Cr.PCode, a Magistrate has no power to1 make an order in the nature of a mandatory injunction. All that the Magistrate ran an is to make an order prohibiting any interference with the right of way, if it existed.
11. On behalf of the first party, reliance has been placed on the Full Bench decision of the Allahabad High Court In the case of Abdul Wahab Khan v. Mohd. Hamid Ullah . In this case, the Magistrate had found that the open land in front of the house of one Md, Hamid Ullah was being used as a lane by the inmates of the house and the opposite party had started the construction of the wall in front of the door. Under these circumstances, the Magistrate had ordered removal of the wall erected in front of the applicant's door, Agarwalla, J. who gave the leading judgment held that the power to effectuate a certain object which the legislature has in view, must, be construed as implying the existence of all such ancillary powers as are necessary for carrying out the intention of the Legislature and effectuating the object in view. He held that the express words of Section 147 permit only passing of prohibitory orders, but in order to make a prohibitory order effective, the Magistrate has power to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced.
12. Malik, C. J. who concurred in the order proposed, however, observed that he would like to guard himself against being understood to mean that Under Section 147, Criminal Procedure Code, 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 a breach of the peace and that is due prima facie to the wrongful act of a person, he can direct that person to desist from doing the wrongful act.
In directing him 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 Magistrate 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. In that case, as the constructions were of flimsy character and were not substantial, he agreed with the order proposed by Agarwalla, J. The other learned Judge, Mushtaq Ahmad, agreed with Malik, C. J. The Allahabad Full Bench decision was accepted as laying down good law by a Bench of this Court in the case of A.I.R. 1958 Assam 112, referred to above.
It was held by the Bench of this Court that no sooner a Court passes an order which is meant to be carried out, the law gives the Courts sufficient power to take such measures as may give the order a validity not only in the eye of law but that it may be also effective and useful to the party in whose favour it has been passed. In other words, if a right of way is found in favour of the first party, the fencing or any other obstruction raised has to be removed by the order of the Court; otherwise the order becomes ineffective. The view expressed by Chief Justice Malik in the Allahabad Full Bench decision referred to above, was also accepted by a Bench of the Madras High Court in the case of Angappa Gounder v. Krishnaswami Gounder . Relying upon the earlier decision of the Madras Court, it was held that a negative order can include a positive direction to make the prohibition effective and useful.
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. The prohibitory order that has to be issued by the Magistrate will depend upon the nature of each case and the circumstances in which the aggrieved party has approached the Court. 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 f the order issued by the Magistrate.
13. After consideration of these authorities, it cannot be said that in suitable cases the Magistrate cannot pass an order directing the opposite party to remove the constructions. The power to pass a prohibitory order necessarily implies power to pass such orders as may be necessary to effectuate the prohibitory order, and in some cases it may be necessary to direct removal of the obstruction in order to give effect to the order declaring the right of a party over the land. Each case, therefore, will have to be decided on its own facts and circumstances, and the order of the Magistrate will have to be judged in the light of the circumstances of each case. The counsel for the first party contends that in view of the conduct of the second party in continuing to construct the wail in spite of the notice to her, the order directing her to remove the wail was justified. As in my opinion there is substance in the first point raised by the petitioner, it is not necessary to decide whether in the circumstances of the present case, the Magistrate was justified in passing the mandatory order or not. The Magistrate also does not appear to have applied his mind to the question whether the first party had exercised the right claimed by him within three months of the date of the preliminary order, as required under the proviso to Sub-section (2) of Section 147.
The Magistrate seems to have assumed that as the lund was used by the first party as a passage, the right must have been exercised within three months next before the institution of the enquiry. The proviso to my mind also clearly suggests that Section 147 does not deal with the user of the lands as an incident of ownership. It deals with the right of user as an easement or otherwise. If Section 147 contemplates the case of the user of the land by the owner, the question of exercising the right within three months of the date of institution of the enquiry would not arise. The owner of the_ land will be deemed to be in constructive possession of the land throughout even though he may not be exercising every moment the act of possession.
14. In an inquiry Under Section 147, Criminal Procedure Code, the manner of inquiry is to be the same as provided for in Section 145, Cr.PCode. The order which could be passed Under Section 147 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, and further forbidding all disturbances of such possession. Under Sub-section (6) of Section 145. an order restoring possession to the party forcibly and wrongfully dispossessed, can also be passed. There is, therefore, no fundamental difference between the proceedings Under Section 145 and Section 147, Cr.PCode. The difference, as has been pointed out earlier, lies in the nature of the right which can be the subject-matter of the proceedings under either of the two Sections. The applicant, therefore, even on acceptance of the contentions uracd by her, is not entitled only to an order setting aside the order of the Magistrate. The proper roller the present case will be to set aside the order of the Magistrate and send back the ease to him to pass proper orders after treating the proceeding as one Under Section 145, Criminal Procedure Code, and it is ordered accordingly.
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