This rule is to consider an order passed under sec. 147, Code of Criminal Procedure, as bad on three grounds; first, because it has been directed to persons who were not parties to the proceedings; second, that in its form, the order is not in accordance with sec. 147; third, that the Magistrate has not found that the right claimed had been exercised within either of the periods specified in the proviso to that section.
Sir G. Evans in obtaining the rule, drew our attention to the terms of sec. 147 which, he contended, were so expressed as to make it impossible for any Magistrate to pass an order within that section.
We propose to consider this matter. First, sec. 147 of the Code of 1898 is in modification of the terms of sec. 147 of the previous Code of 1882 which again appears to us to reproduce the corresponding sec. (532) of the Code of 1872, though it is expressed in somewhat different language and requires that a Magistrate shall be satisfied that the dispute is likely to cause a breach of the peace. It does not appear that the legislature has ever intended to alter the law in regard to the subject-matter of the dispute. The intention seems rather to have been to express it in the Code of 1882 in what was considered to be more appropriate technical language, and next, when the Code of 1898 came under consideration, to return to the language of the former Code of 1872, inasmuch as reported cases had amply shown that there had been confusion and uncertainty in applying sec. 147 of the Code of 1882, in consequence of the novel expressions made use of. The expression “tangible immoveable property” which for the first time, appeared in secs. 145 and 147 of the Code of 1882, had been imperfectly understood, and so the more familiar language of the former Code was adopted. This is especially clear if reference be made to sec. 145 and in abstaining from the use of that expression also in sec. 147 we have no doubt that the legislature was influenced by the same considerations. Sec. 147 of the Code of 1882 runs thus:—
“Whenever any such Magistrate is satisfied as aforesaid…………as the case may be.” And sec. 147 of the Code of 1898 re enacted the law on this subject in the following terms:—
“Whenever any such Magistrate is satisfied…………as the case may be.” It is obvious that sec. 147 of the Code of 1898 has not been happily expressed and that, if strictly construed, it is meaningless. A Magistrate is empowered to enquire into a dispute likely to cause a breach of the peace concerning the right of use of land or water including any right of way or other easement over the same, and it is clearly the object of the law that by his order, he shall settle that dispute; and that his order is to be in force until the party against whom the order is passed shall have obtained the decision of a competent Court in his favour. But what are to be the terms of the Magistrate's order? If he finds that the right in dispute exists, he is to “make an order permitting such thing to be done or directing that such thing shall not be done as the case may be” which is to have effect until the decision of a competent Court shall have been obtained to the contrary. If in such Court an order be passed affirming the Magistrate's finding, that order would, it is presumed, be the final order in the matter and take the place of the ad interim, order of the Magistrate, but as the law is expressed, the Magistrate's order would be made absolute. No provision is made for a case in which the Magistrate's order may be modified, though from the nature of the matter in issue, this may constantly happen. But what does sec. 147 mean by stating that the Magistrate's order is to permit “such thing to be done” or to direct that “such thing shall not be done.” The word “such” must refer to something in the context, but the section is silent in this respect.
An explanation is suggested by learned counsel that “such thing” means the matter in dispute connected with the right of use of land or water. This may be what was intended. It is to be regretted that the law should have been so imperfectly and inartistically expressed. A comparison between the corresponding sections of the Code of 1872 and 1882 sufficiently shows that this was probably intended, and that the confusion has arisen from the draftsman substituting for the first portion of sec. 147 of the Code of 1882 the terms of the first portion (with verbal corrections in language) of sec. 532 of the Code of 1872 without noticing that the latter portion of that section would also need amendment to express the law correctly and intelligibly.
The matter in dispute between the parties which has led to proceedings under sec. 147 was the right to use certain water for purposes of irrigation and after declaring the existence of that right in favour of the first party, who are respectively the malik and thikadar of Charaul, the Magistrate has coupled with them “the men of Charaul” who are no parties to these proceedings, and he has also forbidden the second party, the malik and thikadar of Bhikrampur, as well as the men of Bhikrampur who also are no parties to the proceedings from erecting a bund in this nala or obstructing in any way the flow of water proceeding by this nala from Bhikrampur Pahar by the Gadna chur to Charaul. In its form the order is not bad because to use the words of sec. 147 it professes to “direct that such thing shall not be done.”
The erection of this bund so as to prevent the exercise of the right to the flow of this water by the first party has caused the proceedings under sec. 147 and the right being found in favour of the first party, the Magistrate is competent to direct that the obstruction of that right by the erection of the bund shall be removed. Such an order is, we think, what the legislature contemplated if any meaning can be derived from the words of sec. 147. This disposes of the second objection taken.
The first objection is substantial. The Magistrate was not competent to add parties to the proceeding under sec. 147 any more than he could to proceedings under sec. 145 and in regard to proceedings under sec. 145 the law has been thus settled in many reported cases decided by this Court. The result may be unfortunate in its consequences, for in such a dispute the landlords, the malik and thikadar, are not so directly concerned as their tenants. It would be impossible to make all the tenants of the two villages parties to a proceeding under sec. 147 and there is no provisions in the Code of Criminal Procedure as in the Code of Civil Procedure for dealing with such a matter so as to bind the community through some one representing it. The result may thus be that although the malik and thikadar may be prevented from erecting this bund, a difficulty may arise if the bund is erected by some villagers of Bhikrampur. Possibly a remedy will be found if such a case arises. At all events the order under sec. 147 is bad so far as it professes to affect the men of Charaul or of Bhikrampur because they are no parties to the proceedings under sec. 147.
The next matter for consideration in connection with this order is whether it is altogether bad by the inclusion of these persons. We think not. There is no reason why it should not be binding on those to whom it is properly directed. In the present case moreover the improper inclusion of the tenants of the parties to the proceedings cannot affect the order in respect of the landlords. Consequently it will be sufficient if we declare that the order under sec. 147 is null and void in respect of the tenants of Charaul or the tenants of Bhikrampur. The last objection is that the order is bad because the Magistrate has not found that the right in dispute had been exercised within either of the periods mentioned in sec. 147. This is not so. The Magistrate has thus expressed himself on this point:—“To summarize the evidence—The Court is of opinion that the first party, the thikadar and zemindar of Charaul, have proved an uninterrupted use of the water of this nala for twenty years which they have enjoyed as an easement and as of right.”
This, in our opinion, is a sufficient finding for the purposes of this case, for we understand from it that the erection of the bund which had led to the dispute likely to cause a breach of the peace has caused an interruption in the exercise of the right claimed and proved to exist.
The order under sec. 147 will therefore stand with the modification which has been ordered by us.
N.N.M
Order modified.