Muthukumaraswami Nadar and Others vs Muhammad Rowther and Others

Odgers, J.—This is a petition to revise the order of the District Magistrate, Ramnad, dated the 10th April 1921. It appears that, in the village

of Aruppukottai there is a Nadar temple, Mariamman Koil, round which the Nadars claim the right of dragging their temple car in procession once

a year. There is a rival faction in the village composed of Muhammadans who apparently resent the dragging of the car round the Western and

Northern sides of the temple on the ground that the land on those sides belongs to them.

The first proceeding in connection with the present petition occured on the 19th March 1921 when the Sub-Divisional Magistrate made an

order u/s 144 of the Criminal Procedure Code by which he directed that the car be peacefully taken round the temple through the Western and

Northern streets of the temple without infringing the rights of the Musalmans on the street to the North, and prohibited certain Musalinans from

interfering with it during the festival. On appeal to the District Magistrate, he passed an interim order on the 23rd March 1921, on representation

from the leading Nadars, to postpone the dragging of the car but rescinded the order of the Sub-Divisional Magistrate and prohibited the Nadar

community from taking the car in procession round the West and (North) fronts of the temple. On the 10th April 1921, the final order to which this

revision petition is directed was passed. In it the learned District Magistrate holds that the Nadars have not established their right to drag the car

over the disputed land and that, until the question is settled by the Civil Court, their claim to exercise that right should not be upheld. He however

proceeds and prohibited u/s 144 the counter petitioners, or any of the Nadar Community or any one on their behalf from taking the car in

procession round the West and front of the temple. Mr. Rangachariar for the petitioners, the Nadars, has urged several objections to this order on

the ground that it is made without jurisdiction, and the first objection is that, although u/s 144(5) no order can remain in force for longer than two

months, the learned District Magistrate has not only failed to insert such a provision in his order but has virtually issued the injunction restraining the

Nadars till their claim is settled by a Civil Court. The preliminary objection for me to decide is whether I ought to go into this and other objections

to jurisdiction on the ground urged by Mr. Vas, the learned Counsel for the respondent namely, that the order being only enforcible under the Act

for two months and those two months having long ago expired there is no reason why this Court should investigate the legality or otherwise of the

order in question. I confess I have been strongly impressed with this argument in support of which several cases have been quoted. Govinda Chetti

v. Perumal Chetli I.L.R.(1913) Mad. 489 and Emperor v. Vinayak Narayan Arte 38 Bom. 719. There is no doubt that there have been cases

where a Criminal Revision Petition has been entertained although the period of two months had long since expired. As for instance in Ramanadhan

Chetti v. Murugappa Chetti I.L.R.(1900) Mad. 45 where the order was given on the 22nd September 1899 and the judgment in revision delivered

on the 10th April 1900. Nothing seems to have been said in that case as to expiry of the time for which the order could remain in force. So also in

Bhairo Gope v. Emperor (1920) 57 I.C. 662, though in Govinda Chetti v. Perumal Chetti I.L.R.(1913) Mad. 489, as the two months had expired

the learned Judge declined to revise the order. If I am of opinion that this order is wrong although it may have expired, it seems to me I should not

be deterred from expressing my views about it, in case it is sought to use it in any way in the litigation which is already pending on behalf of one

side or the other, in so far as it purports to settle, even only for the time being, the respective claims or rights of the parties. I therefore, though with

some hesitation, decide that the order must be examined to see whether it was passed with or without jurisdiction in spite of the fact that it has

expired.

As already stated several points were taken against the validity of the order by Mr. Rangachariar. I think it may be only necessary to deal with

two or three of them. I have already quoted the terms of the order and from the words quoted it is clear that the order is indefinite as to time.

There was a similar order in Ramanadhan Chetti v. Murugppa Chetti I.L.R.(1900) Mad. 45, where the order was firstly not to interfere with the

management of the koil and secondly not to take any part until a certain person was duly evicted from the koil management by due course of law.

This latter direction was held to contravene the provisions of Sub-section 5 of Section 144- and it was held that to that extent the order was made

without jurisdiction. In In re Meyyaru Animal (1914) M.W.N. 169 , Mr. Justice Sadasiva Iyer observed ''of course, if the Magistracy tries to use

Section 44 as a means of granting a perpetual injunction the High Court has the power to interfere.'' That seems to me what the learned District

Magistrate has tried to do here. There is also in my opinion another and equally obvious defect in the learned Magistrate''s order. Section 144(4)

permits any Magistrate to rescind or alter any order made under this section by himself or any Magistrate subordinate to him. Here, as pointed out

above, the learned District Magistrate has not confined himself to rescinding the order of the Sub-Divisional Magistrate but has prohibited the

counter-petitioners or any of the Nadar community from taking the car in procession. Mr. Rangchariar relying on Emperor v. Dhantua Lodhi

(1919) 47 I.C. 76 , contends that the word ''alter'' cannot mean substituting the names of one party for those of the other. Mr. Vas for the

respondents has ingeniously contended that the order passed by the learned District Magistrate, in so far as it restrains the Nadars, is not an order

in appeal at all u/s 144(4) but it is a totally new order which the District Magistrate took upon himself to pass as he feared a breach of peace. It

will be observed that the final order of the District Magistrate refers to the preliminary order dated the 23rd March and the preliminary order is

clearly one passed on an appeal from the Sub-Divisional Magistrate''s order--See the heading on the top of the paper. It therefore seems to me

that I cannot on the state of the record say that the final order of the District Magistrate was not passed on appeal from the Sub-Divisional

Magistrate and"" I therefore hold that it is not a new order, but under the circumstances I have detailed, one which the learned District Magistrate

had no jurisdiction to pass.

Mr. Kangachariar also relied on the fact that there was an existing order u/s 147 passed on the 20th April 1915 by the Sub-Divisional

Magistrate at that time directing the Musalmans not to spread their looms on one of the pieces of land in dispute and holding that the land in

question was a public road. Mr. Kangchariar''s contention is that this order u/s 144 is illegal because it deprives him of any benefit he may have

under the order passed u/s 147 which is in force until it is displaced by something else. I do not think it necessary to decide as to this contention in

view of the opinion I entertain on the two other points detailed above.

Under the circumstances I must hold that the order of the learned District Magistrate was passed without jurisdiction and I must allow the

Criminal Revision Petition. Under the circumstances I do so without costs.