Hem Chandra Banerji v. Abdur Rahaman

Derbyshire, C.J:— This matter was referred for the decision of the Full Bench by a Division Bench consisting of Bartley and Lodge, JJ. 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 s. 147(2) of the Code of Criminal Procedure should not be set aside.

The facts are that a path leading from the house of Abdur Rahaman Molla, the opposite party, to the public road passed over the lands of the petitioner, Hem Chandra 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 s. 147 of the Code of Criminal Procedure 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 Chandra 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.”

It is to the last sentence of the order that exception has been taken, and the point argued in connection with it is that no such mandatory order can be made under s. 147(2) of the Criminal Procedure Code.

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.”

The question for decision is whether these words can be construed as empowering a Magistrate to order 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.

It was held in three cases decided before the amendment—Pasupati Nath Bose v. Nando Lal Bose ; Lalit Chandra Neogi v. Tarini Persad Gupta and Ambica Prosad Singh v. Gur Sahay Singh , 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 the case of Hari Mali Dasi v. Hari Dasi Dasi , that the change in the language of s. 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.

Newbould and B.B Ghose, JJ. held that the power given to a Magistrate under s. 147(2) of the Code of Criminal Procedure, 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.

This interpretation of the section was adopted by another Division Bench of the Court in Tarani Mohan De Sarhar v. Dwark Nath Banikya Poddar .

In a later case, Haradhone Mukherjea v. Brojendra Nath Rai Choudhuri , the point was tersely settled in two sentences.

The first objection taken is to this mandatory injunction. There is nothing in s. 147 which would entitle the Magistrate to direct the petitioner to pull down this wall.

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. Tabrej Ali Naskar in which it was held that an order directing the removal of an obstruction was within the scope of s. 147(2) of the Code of Criminal Procedure, 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 Badri Das Agarwala v. Sohan Lal Oswal .

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 s. 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 s. 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.”

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 s. 133 of the Code of Criminal Procedure.

We are, therefore, of opinion that it is more correct to follow the decisions in the cases of Hari Mati Dasi…1St Party v. Hari Dasi Dasi…2Nd Party (supra); Tarani Mohan De Sarkar v. Dwark Nath Banikya Poddar (supra) and Haradhone Mukerjea v. Brojendra Nath Rai Choudhuri (supra) previously referred to, but as this view involves a difference on a point of law from the decisions in Khajer Naskar v. Tabrej Ali Naskar (supra) and Badri Das Agarwala v. Sohan Lal Oswal (supra), we refer the following question for decision to a Full Bench:—

“Whether a Magistrate, acting under the powers conferred by sub-s. (2) s. 147 of the Code of Criminal Procedure, 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.

I am of the opinion that part of the order which provides as follows:—“I order that Abdur J “Rahaman and his family may use the path and Hem Chandra Banerji 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 Banerji) is further ordered to remove the stable from the path” is beyond the powers of the Magistrate under s. 147(2) of the Code of Criminal Procedure.

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 the case of Emperor v. B.N Sasmal* .

With regard to the cases that have taken contrary view it is sufficient, in my opinion, to buy 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.

I am, therefore, of the opinion 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.

Bartley, J.:— I agree.

Nasim Ali, J.:— I agree.

Lodge, J.:— I agree.

Pal, J.:— I agree.

Rule absolute, order set aside in part.

N.C.C